Sharp v. Hoffman

Gibson, C. Action for damages for wrongful diversion of water; verdict and judgment for plaintiff. Defendants moved for and obtained an order granting a new trial, from which plaintiff appeals. The new trial [406]was granted upon two grounds: the insufficiency of the evidence to justify the verdict, and of errors of law that occurred at the trial, and. which were duly excepted to by defendants.

Both plaintiff and defendants are riparian proprietors on Parker Creek, in Lassen County, the lands of plaintiff lying below those of defendants. The creek is a small natural stream, fed by snow on the mountains at its source, and has, each year, a variable and diminishing flow of from several hundred inches, measured under a four-inch pressure, in the early spring-time, to a small quantity about the" 1st of July.

The gravamen of plaintiff’s action being the deprivation of water for irrigation during the irrigation seasons in the years 1883, 1884, and 1885, whereby he suffered loss, it is incumbent upon him to show by satisfactory evidence (Code Civ. Proc., sec. 1835) a right to use of the waters of the creek during each of such seasons, an interference with such right, and a consequent injury.

Referring to the record upon these points, it appears that during the trial the question of riparian proprietorship was eliminated by an admission, to the effect that during the time both parties claimed that their respective rights to the water were acquired, irrigation in the neighborhood of the farms of plaintiff and defendants was necessary, and that it was the general custom of the farmers in such neighborhood to divert by means of dams and ditches the waters of streams to irrigate their farms; that defendants had for twenty years used all or "nearly all of the waters of the stream, and whatever water the plaintiff had obtained prior to 1883 was surplus water, or what water was left after defendant’s ditches were supplied; that for the three irrigating seasons that he, plaintiff, received no water, and during which seasons the water supply was low and insufficient for the usual requirements of defendants, he made no complaint, offering as an excuse for his silence, which is [407]an immaterial one, that he had theretofore been told by one of the defendants that such defendant with his co-defendant had purchased the water right for themselves, and that he, plaintiff, believed and was deceived by such statement. If the plaintiff was and is entitled to the use of the .surplus water of the stream only, which we do not decide, and during the seasons complained of the water was insufficient for the customary use of defendants who had a prior right to use it, the plaintiff could not have been injured by deprivation of water that he was not entitled to use.