Ware v. Walker

California Supreme Court Sep 2, 1886 No. No. 8905Published

Before: Foote

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Holding. The court held that a prior appropriator of water has the right to perform necessary work on the servient tenement to maintain the flow of water to their ditch, provided such actions are reasonable and cause no damage to the servient owner.

Issues

Whether the court erred in denying the defendant's motion to strike the second amended complaint.
Whether the plaintiff, as the owner of a water easement, had the right to enter the defendant's land to remove obstructions and maintain the flow of water.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The plaintiff, by the construction of his ditch, and the appropriation and user of the water of the stream, acquired as against the defendant, a subsequent purchaser from the United States, as complete and perfect a right to maintain his ditch”

“Such a right carries with it an implied authority to do all that is necessary to secure the enjoyment of such easement.”

Synopsis

Pleadings — Amendment —Discontinuance oe Parties — Change of Nature of Action. — The action was originally brought by several plaintiffs against the defendant Walter and others, to restrain Walker from interfering with certain water rights owned by the plaintiff, Ware. The defendants other than Walker were joined as such because they refused to become plaintiffs. An amended complaint was subsequently filed, in which Ware alone was named as plaintiff, and Walker as defendant. Held, that the amended complaint did not change the nature of the action.

Water Rights—Public Lands—Approeriator mat Remove Obstructions from Stream. — An appropriator of the waters of a natural stream flowing through public lands of the United States has a right, as against a subsequent purchaser from the United States, to go upon the land of such purchaser higher up the stream than the point of diversion, and remove obstructions from the bed of the stream, so as to cause its waters to flow in their natural channel to the point of diversion.

Foote, C. The plaintiff obtained a final decree in this action, perpetually enjoining the defendant Walker from interfering with the ditch or dam of Ware or his associates in the bed of the Arroyo de Los Gatos, upon the land of the defendant, or from obstructing the flow of the water of said arroyo into said ditch, and for costs.

From that judgment, and an order refusing him a new trial, the defendant appeals.

His first contention is, that the court erred in not granting his motion to strike out the second amended complaint filed in the action.

It appears that the cause of action, to wit, the interference of the defendant with certain water rights of the plaintiff, and a certain ditch and dam in which he had an interest, by obstructing the flow of the water therein from the Arroyo de Los Gatos, from which it was appropriated by plaintiff, was the same cause of action as stated in all the complaints, three in number, filed in the action. And the remedy of injunction was prayed for in all of them. Further, it appears that originally the action was brought by several plaintiffs against the present and other defendants, such other defendants being joined because they had not voluntarily become parties plaintiff, although no injury was alleged to have [591]been done by them, that being wholly charged against defendant Walker.

The first complaint was demurred to, and the demurrer sustained. An amended complaint was then filed, which was also demurred to, and the demurrer sustained. A second amended complaint was then filed, wherein Ware alone was named as plaintiff, and Walker alone as defendant. That complaint the defendant moved to strike out because it was not, as he claimed, a complaint proper to the original action, not being between the same parties or stating the same cause of action.

The cause of action, as we have seen, was certainly the same. The fact that by reason of the demurrer which the defendant filed, and which was sustained, the plaintiff was compelled to discontinue his action as to all the plaintiffs who had not a joint cause of action with Ware, cannot be just cause of complaint by the defendant, for his objection obliged the plaintiff thus to frame his pleading.

And the fact that the cause was discontinued as to those defendants brought in because they could not be made to join as plaintiffs, but against whom no cause of action was ever stated, was a mere discontinuance as to them, to which proceeding Walker had no legal right to object. (Browner v. Davis, 15 Cal. 11, 12.)

Ware v. Walker

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