Riverside Water Co. v. Gage

Water Rights — Action to Determine Adverse Claim —Pleading — Ownership — Diversion of Part. —In an action to determine the adverse rights of the parties to the waters of a stream, where the complaint alleges that the plaintiff is the owner of and entitled to the use of all the water at the point where the defendant’s dam was erected, in excess of 200 inches, an allegation that the plaintiff has been deprived of the use and enjoyment of upwards of 450 inches of water hy the acts of the defendant in erecting the dam does not limit the plaintiff’s claim to the 450 inches, or in any manner qualify the allegation that the plaintiff owns all the water in excess of 201) inches.

Id. — Ownership of Corpus of Water— Right of Use — Finding. — The rule that an appropriator of water does not become the owner of the very body of the water as his personal property, until he has acquired the control of it in conduits or reservoirs of his own, does not apply where the plaintiff is not seeking to recover the value of water which had become his personal property, but is seeking the determination of the adverse claim of the defendant of the right to divert and use a portion of it; and a finding in such action that the plaintiff is the owner and has the right to the use of all the water flowing in the stream at the defendant’s dam in excess of a certain quantity is not in con diet with such rule.

Id.—Findings — Matter Outside of Issues —Prescriptive Right — Riparian Right — Statute of Limitations. — Where the complaint alleged ownership and right of use in a certain portion of the waters of a river, an adverse and unfounded claim by the defendant to and a wrongful diversion of a portion of the water, and the answer admitted the defendant’s adverse claim, alleged that it was valid, and denied the wrongful diversion, and the findings on the issues raised are as broad and specific as the pleadings themselves, and contain everything necessary to support the judgment, findings that the plaintiff has acquired a prescriptive right to the water as against the defendant, and that the defendant is barred by certain sections of the statute of limitations from the assertion of any rights he may have had as a riparian owner, being upon issues not raised by the pleadings, and not necessary to support the judgment, are not material; and the failure to find the facts from which the prescriptive right arose, and the facts necessary to show that defendant was barred by the statute of limitations, is not error.

Id.—Pleading — Riparian Right — Insufficient Defense — Diversion for Irrigation—Findings —Consistency.—An answer pleading a prior appropriation of a portion of the water in controversy, and also alleging that the defendant is the owner of a tract of land through which the river flowed, and that most of the tract was susceptible of and would be benefited by irrigation, but which fails to allege that he was entitled as a riparian owner to any definite quantity of the water, or what portion he could reasonably exhaust for that purpose, or whether the land was above or below the point of the plaintiff’s diversion, is insufficient to raise any issue as to the extent of the defendant’s right, as a mere riparian proprietor, to divert and exhaust any portion of the water as against the plaintiff; nor does a finding corresponding to such allegations conflict with a general finding in favor of the plaintiff as to his ownership of the water decreed to him.