Cox v. Clough

California Supreme Court Jul 30, 1886 No. No. 9990Published

Before: Searls

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Holding. The court held that the defendants' plea of the statute of limitations failed because the trial court's findings established that the defendants had not maintained the necessary five years of continuous, exclusive, and adverse possession of the water prior to the commencement of the action.

Issues

Whether the trial court's findings were sufficient to support a judgment despite the defendants' plea of the statute of limitations.
Whether the evidence supported the trial court's findings regarding the appropriation and use of water.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The whole theory of the defendants’ plea of the statute of limitations is founded upon appropriation and exclusive adverse possession of all of the water for five years, and the findings negative the facts essential to support the plea.”

“But a mere claim of a right to the use and enjoyment of water, however long continued, will not ripen into adverse title thereto.”

“It is the actual appropriation, followed by open, notorious, continuous, and exclusive possession for the time limited by statute under claim of title, that gives the right.”

Synopsis

Water Rights—Adverse Possession and User—Claim of Right. —An adverse possession and user of water for five years continuously and uninterruptedly, with the knowledge of and to the injury of the true owner, will bar the right of the latter thereto; but a mere claim of right to the use and enjoyment of the water, however long continued, will not have that effect.

Id.—Statute of Limitations—Denial of Right to Possession.—The mere denial by the owner of the right of the adverse user to the possession of the water is not a sufficient interruption thereof to prevent the statute of limitations from operating as a bar.

Id.—Findings — Evidence.—The findings on the plea of the statute of limitations examined, and held sufficient, and supported by the evidence.

Searls, C. This is an action to determine the right to the use of the water of certain springs, and of a stream flowing therefrom, situate in the county of San Bernardino.

According to the allegations of the complaint, plaintiffs have a right to the uninterrupted use and flow of five ninths, and the defendants are entitled to the flow and use of four ninths, of the water of San Timoteo Creek, and they pray judgment that they are so entitled, and that defendants be enjoined from interfering with the flow of water five out of every nine days, etc.

Defendants, in addition to other defenses, pleaded the statute of limitations.

The cause was tried by the court without a jury, written findings filed, and judgment entered thereon, in which it was adjudged and decreed that the plaintiff’s were entitled to the use of one half of the waters of San Timoteo Creek flowing from or through the lands of both plaintiffs and defendants, save and except the water of certain springs, the waters of which do not flow to and into the creek, and a perpetual injunction was decreed in accordance with the rights as thus established.

The-appeal is by defendants from the judgment, and from an order denying a motion for a new trial.

Appellants contend that the judgment should be reversed for want of findings upon the issues raised by their plea of the statute of limitations.

The seventh finding of the court, against which the argument of appellants is directed, is defective as a finding of fact under the statute.

The finding is in effect, that ever since the issuance of a certain patent, the defendants and their grantors have claimed the right to the exclusive use of all the waters of the stream to be used upon their land for agricultural [347]and domestic purposes, but said right has never been acquiesced in by the plaintiffs and their predecessors in interest, who have disputed the right of the defendants to such exclusive use of the waters, and claimed an equal right with defendants to the use of the same for like purposes.

An adverse possession and user of water for five years, continuously and uninterruptedly, with the knowledge of and to the injury of the true owner, will bar his right thereto. (Union Water Co. v. Crary, 25 Cal. 509; Davis v. Gale, 32 Cal. 35; Evans v. Ross, 65 Cal. 439.)

Cox v. Clough

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