Chauvet v. Hill

McFarland, J. This action was brought to restrain defendant from diverting the water of an alleged watercourse. Judgment was rendered for plaintiff, — at least, a judgment for costs, — and defendant appeals. If the appeal had been taken by plaintiff, some difficult questions might have been presented. Neither party seems to have had correct notions about riparian rights; but we see nothing in the record of which defendant can justly complain. There are only two or three matters that need be noticed.

1. We think that the complaint is sufficient. It states facts showing that plaintiff is a lower and defendant an upper riparian proprietor upon a stream that is sufficiently described; and the averments of plaintiff’s use of the water for a mill, winery, domestic purposes, etc., are mere surplusage.

2. The main source of the water of the stream was a certain large spring on defendant’s land; and many authorities are cited in the briefs about “subterranean streams,” “percolation,” “water filtration in the soil,” the “ sources of springs,” etc. But the court found, upon ample evidence, that from the spring in question “a stream of water from time immemorial has flowed in a perceptible current, carrying a large body of water, and at a short distance below the spring the stream flows in a deep, well-defined channel into Asbury Canon.” And this being so, it is useless to consider the sources of the spring itself. The right of the owner of land to have a well-defined watercourse continue to flow through it does not depend upon the length of the stream above him; his right is the same, whether the stream commences on his neighbor’s land or fifty miles away.

Defendant filed a cross-complaint, in which he averred, in substance, that he owned land extending from said Asbury canon or arroyo to another stream, called Sonoma Creek, into which said Asbury Arroyo empties; that at a point on said arroyo below the point at which defendant diverted water as charged by plaintiff, the plaintiff himself had diverted the water of said arroyo, and car[409]ried it to a place called Glen Ellen; and that by said diversion sufficient water was not left in said arroyo, or in Sonoma Creek, of which the arroyó is the principal tributary, to afford a supply for defendant’s live-stock, or for domestic purposes, etc. (Here, as elsewhere in the case, the notion of riparian rights seems to be, chiefly, that they consist of the privilege of drinking, and watering stock.) And defendant prays that plaintiff be enjoined and restrained from diverting the water at said lower point last above stated. It is doubtful if defendant could obtain the relief asked for by means of a cross-complaint in this action; but it is unnecessary to pass upon that point, because the plaintiff, in his answer to the cross-complaint, sets up a right by prescription to the diversion complained of, and the court, upon sufficient evidence, found that plaintiff had such prescriptive right. We think that the averment, in the answer, of a prescriptive right is not defective, as contended by appell ant, although the word “uninterrupted” is not used. The words “ open, notorious, and continuous, and adverse to defendant ” are sufficient. We think, also, that the findings of the court are sufficient, although they might have been fuller.