Oneto v. Restano

Hayne, C. — Suit to determine the right to certain water. The trial court gave judgment for the defendant, and the plaintiff appeals.

The subject-matter of the suit, as defined by the complaint, is the water of a certain spring, which the predecessor of the plaintiff conducted through a flume or ditch, across the land of the predecessor of the defendant to his own land. The answer hints at other water coming through the same flume or ditch. And the findings set forth the fact. For while it is found that one Joseph Bache, the plaintiff’s predecessor, was the owner of the spring, it is also found that he and other parties “ did, by means of the said ditch and flume, commence to collect therein and convey therethrough the water of said spring, together with the waters of Sonora Creek.” And all through the findings, the water in controversy is spoken of as the water “of said creek and spring.” It would seem from the evidence that the main portion of the water comes from the spring. But the relative proportions are nowhere shown. It does not appear what right the parties had to the waters of the creek; but it seems that they treated it as on the same footing as the water of the spring. For in the lease mentioned below, they refer to the water as that flowing through the ditch, which phrase would include the water from both sources. But it is evident that the right of the plaintiff to the waters of the spring would not be affected by the fact that other water flowed through the ditch. And for the purposes of this opinion we shall consider [376]the subject of the action to be that alleged in the complaint, viz., the water of the spring.

In view of the fact that the predecessor of the plaintiff is found to have been the owner of the spring, the defendant’s claim to its waters can only be sustained upon the basis of a prescriptive right. And we think that the findings are not sufficient to support a judgment in his favor upon that ground.

The finding in this regard is, that “the possession, claim, and use of the defendant and his grantors, as in these findings set forth, has been quiet, peaceable, open, and notorious.” This finding is clearly insufficient, in that it does not state that the use was adverse or continuous. (Unger v. Mooney, 63 Cal. 595; 49 Am. Rep. 100.) In another place the findings show that the use was continuous. But they nowhere show that it was adverse. The statement that the defendant used the water “as his own property” does not necessarily mean that the use was adverse to the plaintiff. Defendant may have had a qualified or limited property in the water. If the use was under a lease from the plaintiff’s predecessor, it might be said in one sense that defendant used the water “as his own property.” Where a party relies upon a prescriptive right, the finding should not be in any such ambiguous phrase. There is nothing inconsistent with this in the Alhambra Addition Water Company v. Richardson, 72 Cal. 603. There the finding expressly stated that the use of the water was “adversely to the whole world.” Nor do the probative facts set forth in the seventeenth finding necessarily show that the use was adverse. (See Emmal v. Webb, 36 Cal. 204; Biddel v. Brizzolara, 56 Cal. 381; Packard v. Johnson, 57 Cal. 183, 184.)