Emerson v. Bergin

Belcher, C. C. The court below, on motion of defendants’ attorney, struck out a part of the complaint. The defendants then answered, and upon the issues raised by them the case was tried and judgment entered in their favor. The plaintiff appealed, and in support of his appeal insists that the court erred in striking out a portion of his complaint.

The action was brought to obtain an injunction restraining defendants from diverting from the land of plaintiff the waters of a small stream called Arroyo Permanente, and for damages.

The complaint alleged that for more than twenty years plaintiff had owned and occupied a farm in Santa Clara County, containing about eleven hundred acres, through which a running stream of water, called Arroyo Permanente, had its natural course or bed; that plaintiff had kept a large number of cattle, horses, and sheep on his farm, and had obtained water for them and for domestic purposes at his house from the stream referred to until the waters thereof were diverted by defendants; that in 1865 one Robert McKubin owned and occupied a tract of land bordering on the Arroyo Permanente above the plaintiff's farm, and that in that year plaintiff and McKubin jointly constructed a wooden flume from a point on the stream above the latter’s land to a point [199]selected by him on his land, and through and by means of this flume they diverted and appropriated so much of the water of the stream as would flow through the same; that at the time of constructing the flume it was understood and expressly agreed by and between the parties that the water so appropriated, diverted, and conveyed through the flume should be equally used by them upon their respective tracts of land, and the flume was constructed and the water diverted through the same under and with this understanding and agreement; that at the time of constructing the flume plaintiff, with the consent of McKubin and by agreement with him, constructed a tank at the foot of the flume into which the waters flowing through the same were discharged, and also laid a pipe, connecting with the tank, across a portion of Mc-Kubin’s land and his own, to his buildings, through which pipe he drew from the tank his moiety of the water conveyed through the flume; and at the same time McKubin laid down a pipe of the same capacity, leading to the buildings on his land, through which he also diverted and conveyed to its place of use his moiety of the water, and that so long as McKubin continued to own and occupy his tract of land he and plaintiff continued to equally divide and use the water conveyed through the flume, upon their respective tracts of land; that afterwards, about the year 1873, and while the flume, tank, and pipes were so laid and in use, the defendant, Francesco Bergin, then Francesco Price, became the owner of the McKubin tract of land, and succeeded to all his rights therein, and ever since has been and still is the owner thereof; that in the year 1876 defendant Francesco and plaintiff constructed a new flume in place of the one originally built, and through this new flume continued to divert and convey water from the Arroyo Permanente, and to use the same, dividing it equally, on the lands owned by them respectively; that shortly after the construction of this new flume defend