Burrows v. Burrows

Gibson, C. The parties to this suit are the owners of and cultivate separate farms in Monterey County, lying upon and embracing a natural stream known as Muddy Creek and flowing into Clear Creek, which has its source easterly of their farms, and when running flows in a westerly direction, first through the land of respondent Olds, next through that of respondent Burrows, and then through the land of appellant. During the winter and spring of each year, and in times of great freshets, it flows in a large stream down to and across the lands of appellant, but in the summer and during dry seasons the waters of the stream are much diminished, and but a small quantity, if permitted to flow uninterruptedly, would reach the land of appellant.

The appellant acquired title to his land from the government of the United States by a patent issued to him on April 30, 1883, prior to which time the land was a part of the public domain. The respondents from 1876, for over six years prior to the issuance of the patent, had [565]owned, occupied, and cultivated their respective farms, and continued to own, occupy, and cultivate them until suit brought. During the year 1877, and more than six years before appellant acquired title to his land from the government, the respondents each dug a ditch from Muddy Creek, above its junction with Clear Creek, down to and across his own land to his residence, and thereby diverted and appropriated a small stream of water from Muddy Creek for domestic and irrigating purposes. They continuously maintained their respective ditches from that time until this suit was brought, and during the dry season of each year they, through their respective ditches, appropriated, diverted, and used for beneficial purposes, upon their respective farms, a small stream of water.

At the time the ditches were dug, both banks of Muddy Creek were a portion of the public domain, and the appropriation and diversion of water from the creek were not objected to or interfered with until the commencement of this suit. The land that appellant now owns was, at the time of respondents’ settlement on their separate farms, and when they dug their separate ditches, open, unoccupied, and unclaimed land; and it was not until long afterward that appellant settled upon his said land.

The flow of water in Muddy Creek, notwithstanding the appropriation and diversion by respondents, was and is, during the greater portion of each year, sufficient for all the wants of appellant to which he applies the water; but during about three months of the summer of each year, viz., from July 1st to October 1st, the flow of water extends below the respondents' several points of diversion to within one hundred to one hundred and fifty yards of plaintiff’s land, where it sinks and is lost in the sand. A small quantity would, but for the diversions of respondents, reach the land of appellant, and would thereby, it seems, prevent appellant’s well from drying