Stanford v. Felt (1886) · DecisionDepot

Stanford v. Felt

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Oct 30, 1886 No. No. 8117Published

Before: McKee, McKinstry, Myrick, Sharpstein, Thornton

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Holding. The court held that a judge's findings of fact must be based on oral and documentary evidence presented at trial rather than on the judge's personal inspection of the premises, and that the current findings were too uncertain to support the judgment.

Issues

Whether a judge may base findings of fact on personal inspection of the premises rather than on evidence presented at trial.
Whether the findings of fact were sufficiently certain to support a judgment regarding the diversion and return of riparian water.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The findings of fact made should be upon the oral and documentary testimony introduced at the trial, and not on any fact ascertained by the judge of the court on an examination of the premises involved in the controversy.”

“In our opinion, the findings are too uncertain and indefinite to sustain the judgment of the court below.”

Synopsis

Appeal from a judgment of the late District Court of the Twelfth Judicial District for the county of San Mateo, and from an order of the Superior Court of that county refusing a new trial.

The plaintiff is the owner of a tract of land lying on the hank of the San Francisquito Creek, and the defendants of another tract through which flows, the Trancos, a tributary and feeder of the San Francisquito. The action was brought to restrain the defendants from continuing a certain reservoir constructed by them across the Trancos Creek, in such a manner as to divert the natural flow of the waters thereof from the lands of the plaintiff. A judgment was rendered perpetually enjoining the defendants from diverting any of the waters of the creek or discharging any part thereof into the reservoir. The further facts are stated in the opinion of Mr. Justice Thornton.

Opinion — Thornton

Thornton, J. By the common law of England, the right of the riparian proprietor to the flow of a stream is inseparably annexed to the soil and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it. The right of such proprietor ex[250]tends to the natural and usual flow of all the water of the stream, unless when the quantity has been diminished as a consequence of the reasonable use or appropriation of it by other riparian owners for proper and legitimate purposes. (Ferrea v. Knipe, 28 Cal. 340; S. C., 87 Am. Dec. 128; Lux v. Haggin, 69 Cal. 255.) The use by the riparian owner of the water for domestic purposes for irrigation and for the propulsion of machinery are recognized as proper and legitimate purposes. This we regard as the law of this state. (See Ferrea v. Knipe and Lux v. Haggin, supra.) It appears to be law that where all the water of a stream is needed for domestic purposes and for watering cattle, and is thus consumed by one proprietor, the law allows such use.

But in making such reasonable use of water, such proprietor must return the surplus which remains after such use to the natural channel of the stream (Dilling v. Murray, 6 Ind. 324; S. C., 63 Am. Dec. 385; 3 Kent’s Com. 439; Miller v. Miller, 9 Pa. St. 74; S. C., 49 Am. Dec. 545; Gould on Waters, 213); and if this is not done, the diversion will be restrained at the suit of a riparian owner below. Nor is the owner lower down the stream required to show, in order to procure an injunction, any actual present damage. The diversion by lapse of time may grow into a right. (Crandall v. Woods, 8 Cal. 136; American Co. v. Bradford, 27 Cal. 360; Gould on Waters, sec. 214; Moore v. Clear Lake W. W., 68 Cal. 146; L. R. 19 Ch. 451; L. R 7 H. L. 697.) To prevent such result, an injunction will be awarded. (Parker v. Griswold, 17 Conn. 287, affirming 13 Conn. 279.)

It appears from the findings in this case that water has been diverted from the stream, on which both plaintiff and defendants are riparian proprietors, but as to the fact whether it has been returned or not, the finding is as follows:—

“ That except by natural gravitation, and in the summer time over dry lands, no means of returning water [251]

Stanford v. Felt

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Synopsis

Opinion — Thornton

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Concurrence — McKinstrymyrickmckeesharpstein

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