Moore v. Clear Lake Water Works

Morrison, C. J. This case comes before us on the judgment roll alone; and the principal points are as to the sufficiency of the complaint and findings to support the judgment. The alleged cause of complaint is the [148]diversion of water by defendant from plaintiff's ditch, from a stream known as Cache Creek, in the county of Yolo. There are two counts in the complaint; the first of which alleges: “That the plaintiff is the owner and in the possession of a certain water ditch in said Yolo County, generally known and called the Woodland or Moore's Ditch, which commences and heads in a natural watercourse or stream flowing through said county, well known as Cache Creek, at a point in said creek near the northeast corner of the lands belonging to the estate of W. J. Campbell, deceased, and runs thence in a general easterly course about two and one half miles to a point where it branches or forks, one branch or fork thereof running thence in a general southeasterly direction about five miles, and the other branch or fork running from said point in a general northeasterly course about two and one half miles.

“That said ditch, during all the times hereinafter.mentioned, had the capacity to carry one hundred and eighty cubic feet of water, running and flowing at the velocity of four feet per second; and that plaintiff, and his grantors and predecessors in interest,.have been the owners of and in the possession of said ditch, and using and operating the same for more than ten years next before the commencement of this action.

“Plaintiff further alleges that he is the owner of certain water rights; viz., the right to appropriate and take out from the waters of said Cache Creek, flowing naturally therein at the head of said ditch, so much water as said ditch has the capacity to carry as aforesaid, and to divert the same into and through said ditch, and to use said water and furnish the same to others, to be used for domestic, stock, and agricultural purposes; and that he and his grantors and predecessors in interest have been the owners of such water rights continuously for more than ten years next before the commencement of this action, and have, during said time, except when [149]such rights were interrupted by defendant, as hereinafter stated, been in the uninterrupted use and possession of such water, and diverted the same at said point, and used and furnished the same to others to be used for domestic, stock, and agricultural purposes.