Lowden v. Frey

Searls, C. This is an action to fix and determine by a decree of court conflicting rights of plaintiff and defendants to the water of Grass Valley Creek and its tributaries, to enjoin defendants from interference with the water adjudged to belong to the plaintiff!, and to recover damages.

Plaintiff's grantors in 1850 located what is now known as the Lowden Ranch, situated in Trinity County, and through which a stream known as Grass Valley Creek flows. The ranch was situated upon public lands of the United States.

In 1852 a ditch was constructed from the creek, and the waters thereof diverted and conducted through said ditch to the ranch, and there used for purposes of irrigation.

In 1854, defendant Frederick Frey and others constructed a ditch from Grass Valley Creek at a point above that of plaintiff, and extending to Ohio Flat and other points on Trinity River, for mining purposes. This last ditch is known as the Ohio Flat Ditch.

The main issue at the trial was as to the extent of plaintiff's prior right to the water of said creek. Plaintiff had a decree adjudging her prior right to the use of 120 inches of water measured under a four-inch pressure, from which decree and from an order denying a motion for a new trial she appeals.

[475]The contention of appellant is that she was entitled to a decree establishing her right to a much larger quantity of water than that adjudged her by the court, and that she was entitled to damages for past diversion of water by defendants. The prior right of plaintiff to forty inches of water is admitted by the pleadings.

At the trial it was stipulated in open court, by counsel for the respective parties, that “the evidence be confined to the issue upon the quantity of water appropriated by, and to which each of the respective parties is entitled, and to the question of damages, and that all other issues, if any, raised by the pleadings be ignored.”

The testimony as to the extent of plaintiff’s prior right to the water, involved as substantial and radical a conflict as can well be imagined. It ranged, according to the statements of different witnesses, from thirty-six inches to sixteen hundred inches.

A certain ditch known as the Skinner Ditch, and having a large capacity, is described by some of the witnesses, and its very existence ignored by others.