Oneto v. Restano

Temple, C.— This is the second appeal in this case. The former appeal, like this, was taken by the plaintiff from a judgment in favor of defendant, and from an order denying his motion for a new trial. The judgment was reversed on the ground that the court failed to find that the use of the water by the defendant and his grantors had been adverse. (78 Cal. 374.)

After the case had been remitted to the trial court, the defendant was allowed to amend his answer so as to aver that for more than five years last past he has been using the water adversely to plaintiff and his grantors.

There is no claim in the answer of title on the ground that the use was adverse, unless such defense is involved in the simple allegation of ownership. In fact, the theory of the defense seems to be, that Bache, plaintiff’s grantor, w'as the owner of a spring from which he had conducted water to his premises, in the city of Sonora; that by agreement with the Antoninis, through whom defendant derives his title, Bache and the Antoninis, some years afterwards, constructed a new ditch and flume, and took in other waters; that it was understood that the Antoninis and Bache should then share the water equally. The new water taken in was, defendant claims, just about equal to that which had previously been carried by the Bache ditch from the spring which belonged to him. So that by the arrangement with the Antoninis,Bache was able to secure a new ditch and flume in place of one which had become dilapidated and unserviceable, and still practically retain all the water he had before. And the court finds that it was agreed, when they arranged to rebuild, “ that the water of said spring (the new water to be taken in), to be thereafter appropriated, together with the Bache spring, should belong to them in common, and to share equally in the use of the water each alternate day, for irrigating their respective gardens, and for culinary, domestic, and other useful purposes.”

[66]It is also found as a fact that they did open up another spring, constructed the ditch and flume as agreed, caused the waters of both springs to flow into it; and it is found that from that time, 1867, Bache and the Antoninis, and their respective grantors, have used the water on alternate days for irrigating their respective gardens, and for culinary and other useful purposes, continuously, peaceably, and uninterruptedly; that the new spring had not previously been owned, claimed, or appropriated by any person-.