Harris v. Harrison

McFarland, J. This action was brought to quiet plaintiffs’ title to the right to the use of certain water, alleged to flow naturally through a stream called Harrison Cañón. Judgment was rendered for plaintiffs, and defendants appeal.

Plaintiffs and defendants are the owners of adjoining land, ■—■ defendants’ land lying on Harrison Cañón above and to the north of the land of plaintiffs. ■ The real merits of the case — underlying incidental points of pleading and practice — rest upon the issue whether or not there is any watercourse in Harrison Cañón. Defendants undertook to maintain by their evidence that the general character of Harrison Cañón was that of a dry, sandy gulch, with practically no running water in it, except during great and unusual rain-storms, when temporary torrents bring down large masses of sand and debris, which fill up the gulch, and so change it that it could not be said to have any well-defined bed or banks; that ordinarily there was no water in the cañón except a little that oozed out of two springs on defendants’ land, in quantities too small to form a current strong enough to flow down to plaintiffs’ land; and that de[678]fendants, by digging into said springs, and removing obstructions, developed a small stream, which they use to irrigate their land. Plaintiffs introduced evidence tending to show the contrary of defendants’ contention, and tending to prove that there always has been, and is, a natural stream of water running down said canon to and upon plaintiffs’ land, independent of said unusu 1 storms. The judge of the court, with counsel for both parties, and a civil engineer (Finkle), visited the premises, and observed the various points alluded to in the testimony. The evidence was certainly very conflicting; and without reviewing it here in detail, it is sufficient to say that its character is such that the finding of the lower court that there was a watercourse as claimed by plaintiffs must be taken as final.

1. We do not think that the court erred in sustaining the objections to two certain questions asked by appellants of the witness Finkle. The witness had testified that he had measured the water in Harrison Canon when he visited it with the judge of the court, as above stated, and had given the result of his measurement; and appellants’ counsel then asked him this question: “ What, if any, comparison does a flow of water out of streams or springs bear this year to that of the preceding year?” And the witness, having stated that he had “ this year ” also measured certain other named streams coming from the mountains into the San Bernardino Valley, was then asked this question: “ How, then, what, if any, is the increase or decrease of any of the streams that you have mentioned, — City Creek, Plunge Creek, or the other streams you have mentioned, on the north side of the San Bernardino range, — this year as compared with the preceding years? ” Objections to these two questions were sustained, and, we think, correctly. Appellants had the right to show, if they could by appropriate evidence, that there was more than the average amount of water in Harrison Canon at the time Finkle measured it. This they might have done by the direct testimony of witnesses who knew the fact, if there were such, or by