Ramelli v. Irish

Belcher, C. — The controversy in this case is as to the respective rights of the parties thereto to divert and use for purposes of irrigation the natural waters of a small stream in El Dorado County, known as Slate Creek. Each party alleges that his right to the said waters is prior and superior to that of the other.

At the trial, when the plaintiff rested his case, the defendant moved for a nonsuit, upon the grounds: “ That plaintiff has failed to show that at the time the water was diverted from the bed of the stream by the defendant, the quantity of water at head of plaintiff’s ditch was thereby diminished; that the evidence given shows that the defendant was lawfully entitled, as riparian proprie[215]tor, to the water diverted by him, and that none of the waters have been diverted away from the stream; that the evidence given does not show that the plaintiff was entitled to any of the waters diverted by the defendant.”

The court granted the motion, and the plaintiff thereupon appealed from the judgment.

The facts proved were, in substance, as follows: Slate Creek runs through land owned by defendant, and to which he acquired title from the government by a homestead patent in April, 1885. It carries at the beginning of the irrigating season twenty or more inches of natural water, measured under a four-inch pressure, but the quantity diminishes as the season advances, and at the end thereof there are not more than four or five inches.

As early as 1857, a ditch, now called the “ Schlein ditch,” was constructed to take water from Slate Creek, and carry it away to be used in mining. It started at a point a little above the lower line of the land now owned by defendant, and took not only the natural water of the creek, but other water received from flumes passing a short distance above its head. In 1858, one Craig purchased the ditch, and thereafter held and owned it until 1873. During the time he so held the ditch he sold water conducted through it to miners, and used some of the water to irrigate his land. In 1873, he conveyed his land to one Theodore Schlein, and intended to convey the ditch, but did not mention it in his deed. He testified: “I still owned it [the ditch] until I sold it to Mr. Schlein. I sold my ranch, and that with the ranch. I did not give a deed of the ditch, — I forgot to pxit it in the deed. This ditch ran to the land I sold to Mr. Schlein. I used this ditch for irrigating on a portion of this land. .... This Schlein ditch was used in connection with my ranch, and I.sold water through it. This ditch took the natural waters of Slate Creek from the time it was cut, some time in 1856 or 1857.....Schlein took possession of this Schlein ditch at the time I sold the ranch; the deed is dated December 30, 1873. Mr. Schlein took possession of the ranch and ditch at the same time.” ,