Heilbron v. Last Chance Water Ditch Co.

McFarland J. This is an action to restrain defendant (a corporation) from diverting water from a natural watercourse called Kings River, and for damages for past diversion. The court below, sitting without a jury, gave judgment for defendant; and from the judgment, and an order denying a new trial, the plaintiffs appeal.

The plaintiffs, who are August Heilbron, Adolph Heilbron, S. Clayburgh, and S. C. Lillis, aver in their complaint that they “ are now, and they and their predecessors and grantors for more than five years last past have been, the owners and in lawful possession of” a large tract of land in Fresno and Tulare counties in this state, called the “Rancho Laguna de Tache.” The facts about their title and possession, as proven and found by the court, are these: On and prior to September 23, 1868, the title [119]in fee to the said rancho was in Jeremiah Clarke, to whom it had come by mesne conveyances from Manuel Castro, to whom before that time it had been patented by the United States government. On said September 23, 1868, said Clarke leased the rancho to Edwin St. John for a term of ten years ’from and after November 1, 1868. St. John took possession under the lease, and so held possession until the tenth day of September, 1874, on which day, with consent of Clarke, he transferred his unexpired leasehold to the plaintiffs herein, who then entered and have been in possession continuously until the commencement of this action, which was October 12, 1883. On April 24, 1877, Clarke made a contract with plaintiffs, by which the term of the lease to St. John was extended for the further period of six years, ending November 1, 1884, and plaintiffs were given the privilege of buying a part of the land at a specified price. On May 1, 1880, Clarke made another contract with plaintiffs, by which he leased said rancho to plaintiffs for the term of ten years from said May 1st, with the privilege of buying the whole of the land, and canceled the contract and lease of April 24, 1877. And since May 1, 1880, plaintiff’s possession has been under the said contract made that day. Clarke is still the owner in fee of the land. He is not a party to this action.

Along this land, and forming a boundary of it for many miles, there is a natural watercourse called Kings River. The defendant, by means of a dam and ditch, has diverted a large amount of the water of this river, and carried it away from said land, and continues to so divert and carry it. Plaintiffs bring this action to restrain such diversion and for damages, basing their cause of action upon the right of a riparian owner to have a natural stream continue to flow as by nature it is wont to flow, over, through, or along his land. Defendant contends that by an adverse user for a period of more than five years before the commencement of the action it has