Byrne v. Crafts

Paterson, J. — In Cave v. Crafts, 53 Cal. 135, it was adjudicated “ that that portion of the said waters which is not necessary to irrigate the Carpenter ranch, and which is known as the waste water of the Carpenter ranch, and for household purposes, the same had, for more than five years prior to the commencement of this suit, been used and appropriated by defendant Leffingwell and Byrne, and their grantors, adversely to and against the owners of the lands of Cottonwood Row, and so used by them to irrigate, and for agricultural purposes, and for domestic uses.

“That the irrigation, cultivation, and profitable ownership of said orchards, farms, and vineyards of these plaintiffs solely and entirely depend upon these plaintiffs having and enjoying the full and entire use of the flow of said water, according to their ownership, flowing without interference, hindrance, or diminution thereof from any person.

“That plaintiffs are the owners of all the waters of Mill Creek, and are entitled to have the same flowing in said zanja, to and upon their respective lands, and to use the same for the purposfe of irrigating their respective parcels of land.

[643]“ That defendants are the owners of the waste- water of the Carpenter ranch or place, and to use the same upon other places to irrigate the same.”

The judgment roll in that cause was introduced in evidence in the court below on the trial of this action, and the construction placed upon the findings which we have quoted by the court is shown in its twenty-fourth finding of fact, which is as follows: —

“XXIV.

“ That neither one third nor any fixed portion of the water of said Mill Creek constitutes the waste water of the said Carpenter ranch; but said waste water consists entirely of such water, if any, as may be allowed by the owners of said Carpenter ranch to flow past their said land when entitled to use the same, and which said owners may not care to use for any purpose thereupon.”

The rulings of the court upon the testimony offered also show that the contention of counsel for defendants was sustained. That contention is thus stated by them: “The decree practically allowed to them a certain amount of water in absolute ownership, — to wit, the amount that was necessary at the time of the decree for the irrigation of the Carpenter ranch, — it decreed them the amount of water absolutely, and irrespective of any point of user of the same. If they had chosen to use no portion of it upon the Carpenter ranch, and to use it upon outside lands not included within the boundaries of the Carpenter ranch, so long as they did not exceed the amount of water awarded them, we submit that plaintiff can make no complaint.”