Southern Pac. R.R. v. Dufour

Garoutte, J. This is an action to restrain respondent from unlawfully diverting certain waters claimed to have been appropriated by appellant under the provisions of the Civil Code. Judgment went for defendant, and this appeal is. prosecuted from the judgment and order denying the motion for a new trial. The Endings of the court are not attacked, and the facts of the case may be briefly stated as follows: In the year 1888, Du-four acquired title to section 36 of a certain township, and range situated in Kern County. Prior to this event said realty was the property of the state. Upon this tract'of land was a small tract of marsh or swamp land, in which the water came to the surface of the ground. As early as the year 1880 plaintiff made an excavation or reservoir some Eve feet in diameter in this marsh, in which the water collected, and from thence it was transferred in a small underground pipe a mile or more distant to the railroad station of Cameron, where it was applied to the various uses of plaintiff. In the year 1886, plaintiff, in pursuance of sections 1410 et seq. of the Civil Code, posted a notice at the said reservoir, claiming five inches of said waters measured under a four-inch pressure; and it is under these acts and the foregoing provisions of the Code that plaintiff’s rights are based. Prior to the commencement of this action, defendant made a tunnel into an adjoining hill, and dug a ditch in connection therewith (said acts being done upon his own [617]land), for the purpose of procuring water for irrigation and for his sheep. The action of defendant resulted in plaintiff’s reservoir becoming dry and the water collecting in defendant’s ditch, and this litigation followed.

The court found “ that said spring (reservoir) in the complaint described was, on the seventh day of October, 1886, and for a long period of time prior to that date, and ever since such date has been and now is, fed solely by percolating waters which seep into said spring from the swamp or wet land surrounding the same, and such spring is not and never has been fed by any running stream of water.” The finding is amply supported by the evidence, which clearly indicates that no stream of water runs into or from the bog or spring other than is conveyed away through plaintiff’s pipe line. In the face of these facts, it is entirely immaterial whether the steps taken by plaintiff under the statute law of the state were strictly within the provisions of that law or not. There was no water at the spot to which plaintiff could acquire the right of use, either by statutory appropriation or adverse user, and this principle is supported by unquestioned authority. In Trustees of Delhi v. Youmans, 50 Barb. 316, the matter is exhaustively discussed, and Justice Boardman there said: “The law controlling the rights to subterranean waters is very different from that affecting the rights of surface streams. In the former case the water belongs to the soil, is part of it, is owned and possessed as the earth is, and may be used, removed, and controlled to the same extent by the owner.” After citing many authorities, the opinion continues: “ These and other cases establish the principle that no action will lie for injuries caused by cutting off subterranean channels percolating the soil or running through unknown channels and without a distinct or defined course.”