Healy v. Woodruff (1893) · DecisionDepot

Healy v. Woodruff

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Mar 7, 1893 No. No. 18042Published

Before: McFarland

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Holding. The court held that a riparian landowner is not precluded from also being an appropriator of water, and that the plaintiff's prior appropriation of 360 inches of water was valid against subsequent claimants.

Issues

Whether a riparian owner is legally barred from acquiring additional water rights through appropriation.
Whether the plaintiff's enlargement of his ditch to 360 inches created a valid water right against subsequent riparian or appropriator claimants.

Disposition. reversed

Quotations verified verbatim against the opinion

“The fact that plaintiff or his grantor was a riparian owner does not warrant the conclusion that he could not be an appropriator”

“The enlargement of the ditch encroached upon nobody’s vested or prior rights.”

“the court should have found as a conclusion of law that plaintiff has such right to 360 inches of said water.”

Synopsis

Water Eights — Appropriation — Eiparian Eights. — An appropriator of water on the public lands does not, by becoming a riparian owner, lose his right to acquire more of the water by a subsequent appropriation, or enlargement of his ditch, but he may take all the water of the stream if he is the first or prior appropriator, and there is no other riparian owner at the time of the appropriation or enlargement of the ditch, and those who subsequent!}' became riparian owners acquire no rights as against such prior appropriator.

McFarland, J. This is an action to quiet plaintiff’s title to certain waters of a stream called Cedar Creelc, audio a ditch leading therefrom, and for an injunction, [465]etc. The court rendered judgment for plaintiff against the defendants Harrison Smith and Edward Bonyman,, as prayed for in the complaint; but as against the defendants James and John A. Smith and B. C. Woodruff, the judgment quieted plaintiff’s title to only one hundred and eighty inches of water, measured under a four-inch pressure. Plaintiff appealed from the judgment, and contends that the court’s conclusions of law were erroneous, and that, upon the findings of fact, his title should have been quieted to three hundred and sixty inches.

The court finds (in brief) these facts: In April, 1873, plaintiff’s grantor, Frank Thomas, entered upon' said Cedar Creek, and constructed the ditch described in the complaint. He completed it before the 4th of November, 1873, and diverted one hundred and eighty inches of water, and used it for irrigating certain lands described in the findings, for watering stock, and for domestic purposes, to the amount of one hundred and eighty inches, that being then the capacity of the ditch. In the winter of 1873-74, the ditch became so enlarged, “ through the action of water running to the head thereof and into the same,” that it was afterwards capable of carrying three hundred and sixty inches. “Ever since said ditch was so enlarged, and up to the time- of the commencement of this action, plaintiff and his grantors did divert and use from said Cedar Creek the waters of said creek to the full capacity of said ditch as so enlarged, whenever sufficient water came down to the same, and that said waters have been used during all said time for irrigating the lands described in finding 5, as well as other lands of plaintiff described in the complaint herein, and for watering stock, and for general household purposes.” Plaintiff’s lands require for irrigating at least three hundred and sixty inches of water. Plaintiff acquired from said Thomas the said ditch and water rights and certain lands, in September, 1874, and has ever since been the owner of the same. Many years afterwards, the various defendants began to-[466]assert rights to the waters of said creek as riparian owners, or as appropriators, and to divert the same from plaintiff’s ditch; but none of such rights had any origin within five years after the said enlargement of the said ditch. Most of them originated ten or fifteen years afterwards.

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Upon these findings of fact, the court below made the conclusion of law that plaintiff should have his title quieted to only 180 inches. The record does not show, upon its face, upon what theory this conclusion was reached; but we discover the theory from the brief of respondents. It appeared that the court held that because the plaintiff's grantor acquired the title to some land on the stream, and thus became a riparian owner, he could not afterwards acquire any more water by appropriation, and that therefore his enlargement of the ditch in the winter of 1873-74 did not give him any right to an increased flow of water in his ditch, as against any one who, years afterwards, might assert riparian rights on the stream above the ditch. But this position is clearly untenable. The fact that plaintiff or his grantor was a riparian owner does not warrant the conclusion that he could not be an appropriator,—there is, as is said in a play, “ No consonahby in the sequel.” The notion seems to be, that becoming a riparian owner estops one, in some sort of a way, from being an appropriator of water, although there be no one in existence in whose favor the estoppel can be invoked. When the [467]ditch was enlarged, there was no person having any rights on the stream except plaintiff’s grantor himself, and therefore the enlargement of the ditch encroached upon nobody’s vested or prior rights. Respondent argues that if appellant’s position be correct, the first riparian owner could monopolize all the waters of the stream. But he admits that an appropriator who is not a riparian owner can take all the water of a stream on the public lands, if he be the prior or first appropriator. And it would certainly be strange if the first-comer to a stream, who acquired title to some land upon it, has less rights in the water of the stream than one who owns no land there at all. At the time of the enlargement of the ditch, there was no riparian owner on the stream except plaintiff’s grantor. If some other person had been the riparian owner, instead of plaintiff’s grantor, the latter, 'with the consent of such riparian owner, or by adverse user, could have diverted the waters of the stream, and held them against all subsequent comers; and certainly his own consent to the appropriation was equal, at least, to the consent of another person who might have occupied his position. Counsel for respondents seems to think that because plaintiff’s grantor, as a riparian owner, could have prevented subsequent appropriators from diverting the water above his land and away from it, therefore he could not divert the water himself; but that is a confusion of the distinction between meum and tuum. Counsel complain that this view gives great advantage to the first possessor and appropriator of the water of a stream. This is no doubt true, but it is the advantage which the law gives, and which necessarily follows prior occupancy and appropriation.

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