Van Bibber v. Hilton
Before: Foote, Works
Synopsis
Riparian Rights—Action to Restrain Diversion—Pleading — Cross-complaints. — In an action to restrain the diversion of water from a riparian proprietor,. two cross-complaints of defendants,, one of which sets out the right of defendants to the reasonable use of the stream in controversy as riparian proprietors, and the other their right to the use of twenty-five inches of the waters thereof, as prior appropriators, and each of which alleges unlawful acts of plaintiffs done and threatened in interference with the rights of defendants, and prays for affirmative relief, affecting the property to which the action relates, state causes of action which are proper to be pleaded by way .r cross-complaint.
Id. — Separation of Cross-complaints. — Instead of setting up such separate rights in the form of two cross-complaints, they should be stated separately in one cross-complaint, to avoid confusion.
Id.—Prior Appropriation by Riparian Proprietor—Insufficient Findings — Judgment Cutting off Riparian Rights.—When the court finds that both parties are riparian proprietors, and that defendants are prior appropriators of twenty-five inches of the stream, and fails to find what amount would be reasonable for defendants to use as riparian proprietors for irrigation, or other necessary purpose, a judgment ordering that all the waters of the stream be allowed to flow unrestricted to plaintiffs’ lands, excepting twenty-five inches, to which defendants are entitled as prior appropriators, and cutting the defendants off from all reasonable use of any other part of the water as riparian proprietors, is unsupported by the findings, and is contrary to law.
Opinion — Foote
Foote, C. This is an action to restrain the defendants from diverting the waters of a stream in the county of Modoc. The stream flows through the lands of both the plaintiff and the defendants, and they are all riparian proprietors, the defendants’ land lying on the stream above that of the plaintiff.
[586]It appears by the findings that the amount of water carried by the stream is about 250 inches under a four-inch pressure, and that of such amount of water the defendants were the proprietors by prior appropriation of 25 inches. The court also found that the defendants had, by means of dams constructed in the stream and ditches leading out therefrom, diverted all the water of the stream, so as that none of it reached, by its natural flow, the lower riparian proprietors; that all the lands of the plaintiff were irrigated by the stream flowing naturally and spreading over it; and that a portion of the defendants’ land was also irrigated in the same way, as also by the twenty-five inches of water obtained by a prior appropriation.
Finding that all the parties to the action were riparian proprietors, and that the defendants were also appropriators to the amount of twenty-five inches of the water running in the stream, the court below enjoined the defendants from diverting any of the waters except that to which they are entitled as such appropriators.
From, the judgment rendered, the defendants appeal.
The pleadings of the defendants are all upon one paper, and were filed at the same time, and are signed at the end of the last part, or what is called the second cross-complaint. The part denominated the answer denies the allegations of the complaint, and pleads the statute of limitations under sections 318 and 319 of the Code of Civil Procedure by way of defense. The demurrer filed to the answer was overruled.
The grounds of demurrer to the cross-complaint are, that they do not state facts sufficient to show a cause of action, and that they are unintelligible, ambiguous, and uncertain.
It is proper to remark, in passing, that the matters set up separately in two cross-complaints might have been stated separately in one cross-complaint, and one demurrer would then have sufficed. The plan adopted here is confusing.
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