Charnock v. Rose

McKee, J. This is an appeal from a judgment which perpetually enjoins the defendants from interfering in any way with the possession, use, and control of a ditch in which is conducted, for the purpose of irrigation, the water of a natural watercourse on the plaintiff’s land.

The watercourse is known as the Bellona Creek, which rises on private property above the Bellona ranch, in Los Angeles County, and has “ from time immemorial flowed through the ranch.”

It appears that prior to the year 1850 the owners of the ranch constructed two ditches, by which they diverted and conducted the water of the creek to the irrigable lands of the ranch. In that way they occupied and used the ranch until the year 1868, when it was, by judicial proceedings, partitioned among them, and in the partition there was allotted to them respectively certain parts of the irrigable lands in proportion to their respective interests in the ranch, and assigned, as appurtenant to each allotment, a proportionate right to the use of the water of the creek running in the ditches.

Having become the owner of two of those allotments, and the water right appertaining to them, the plaintiff entered into possession, and exercised his rights of ownership and possession, unchallenged by any one, until February, 1885, when the defendants, without his consent or permission, entered upon the ditches, and claiming the right to appropriate the water running in them, assumed the use and control of the same.

[191]This entry was not made by the defendants upon any personal claim of private ownership to the property. They do not assert any right to the land or the water founded upon grant or appropriation, nor do they question the private ownership of the plaintiff to both land and water; but admitting that he is the owner of the property, they say that they entered upon it and assumed to use and control it in the exercise of authority conferred upon them by an act of the legislature entitled “An act creating a board of commissioners and the office of overseer in each township of the several counties in the state, to regulate watercourses within their respective limits,” approved May 15,1854, and the acts amendatory thereof.

The plaintiff denies that the statute conferred any power upon the defendants as a board of water commissioners or otherwise to enter upon his property and deprive or disturb him in its use and enjoyment; and that, even if that was the purpose of the statute, it was wholly ineffectual for such purpose, and has been repealed.