Churchill v. Baumann

Vanclief, C. This action was commenced on the first day of April, 1889, to recover eight thousand eight hundred dollars damages from the defendants — seven in number — for the alleged diversion of water from a natural stream — Pine Creek — in Modoc County, during the years 1887 and 1888, to the injury of plaintiff’s riparian and appropriated water rights below the point of diversion; and also to enjoin such diversion pendente lite, and upon the bearing, perpetually.

Judgment passed for defendants, and plaintiff appeals from the judgment on the roll and without a bill of exceptions.

The court found that in the early part of spring the stream affords 3,000 inches of water under a four-inch pressure, but in the dryest part of the year only 1,000 inches; that in June, 1882, the defendants and one J. Thad. Jones constructed a dam across the creek above plaintiff’s riparian lands, and above all the points from which plaintiff diverted water, by which they diverted from the creek 550 inches of water into a ditch constructed by them, through which they conducted that amount of water to certain lateral ditches connected therewith, through which the water in the main ditch [543]was distributed among the owners in proportion to the quantity of land to be irrigated thereby, viz., 50 inches of water to 160 acres of land. None of the land irrigated by this water was riparian to the stream. J. Thad. Jones owned 160 acres of land, and was entitled to use, and did use, 50 inches of water from the main ditch to irrigate his land until October, 1885, when he conveyed his land and water right to the plaintiff; “ that after said J. Thad. Jones conveyed said land to the plaintiff, and particularly during the years 1886 and 1887, plaintiff participated with and assisted the defendants in maintaining said dam, and in keeping said dam and ditch in repair, and acted in connection with them in diverting said amount of 550 inches of water from said stream by means thereof; and plaintiff, during the irrigating seasons of said years 1886 and 1887, did use the water so diverted from Pine Creek by means of said dam and ditch for irrigation upon said land (purchased from Jones), to the extent and amount theretofore claimed and used upon said land by his said grantor, J. Thad. Jones.”

It was further found that plaintiff was in possession of all his riparian lands prior to 1882, and has been ever since; and that he had full notice of the construction of said dam, and of the diversion of 550 inches of water by the defendants and their grantors in June, 1882, and thence until October, 1885, when he purchased the interest of Jones, and during all that time had notice that defendants diverted the water under a claim of right; yet it does not appear that he ever objected to the construction of said dam, or the diversion of the water, until he did so by the commencement of this action.