Posachane Water Co. v. Standart
Before: McFarland
Synopsis
Water Rights — Diversion — Justification under Prior Right of One Defendant — Conveyance of Ditch and Appurtenances to Corporation. — In an action to restrain the diversion of water of a stream, where the defendants defend and justify their acts under and by virtue of a prior right in one of the defendants to a ditch and water right, it is immaterial whether the strict legal title to the ditch or water right, or both, is in the said defendant individually, or is in a corporation to which a conveyance of the ditch and appurtenances had been made.
Id. — Pleading — Answer — Riparian Rights — Prior Appropriation — Omission in Findings — Appeal. — The failure of the trial court to find upon certain riparian rights set up in the defendants’ answer will not warrant a reversal of a judgment for the defendants, upon appeal of the plaintiffs, where the other facts found sustain the judgment of the court as to the priority of the water rights acquired by appropriation under which the defendants claim.
Id.—Evidence — Opinion as to Grade of Ditch.—The opinion of a witness as to the grade per mile of a water-ditch is admissible, although subject to be overcome by any more accurate information which may be produced by the opposing party.
Id.—Measurement of Capacity of Ditch — Least Carrying Capacity. — Where a ditch is intended to supply, and does supply, water for use at various points along its course, the latter part of the ditch need not be so large as the first part; but the general rule for measuring the capacity of a ditch (making due allowance for evaporation, seepage, etc.) is the amount of water that it will carry from the point of diversion to the point of use, and the point of least carrying capacity fixes the general capacity of the ditch; and this rule applies where it does not appear that the water was intended to be used along its course, before it reaches the point at which the size of the ditch was decreased, the intention apparently being to supply first the homestead of the appropriator beyond the point of contraction.
Id. — Finding against Evidence. — A finding to the effect that the ditch of the defendants was 27 feet wide on top, 20 feet on the bottom, and 30 inches deep, and had a grade of 7 feet to the mile, and being of that size and grade, carried 427 cubic feet of water per second, is not justified by the evidence, where the strongest evidence on behalf of the defendants shows that the ditch was only 16 feet wide at the top in some places, and was smaller still in other places; and the only definite evidence as to the amount of water a ditch of a given size and grade could carry showed that such a ditch could not possibly carry as much as 427 cubic feet of water per second.
Id. — Atfeal — Modification of Judgment — Findings — New Trial. — The appellate court will not modify a judgment upon appeal, where, in order to do so, it must make a finding different from that made by the court below, but will reverse the judgment and remand the cause for a new trial.
McFarland, J. This case involves the conflicting claims of the parties to the waters of Posachane Creek. It is averred in the complaint that since 1886 plaintiff and its grantors have been the owners of a certain ditch, through which they have diverted and carried the waters of said creek, and used the same for beneficial purposes; and that in December, 1890, the defendants wrongfully [478]constructed a dam near the head of said ditch, by which they completely prevented the flow of any water into the same from said creek, etc. The defendants are T. W. Standart and several other natural persons; and they aver, substantially, that said Standart constructed a ditch, and acquired the right to divert the waters of said creek through said ditch, in 1885; that said ditch and water right of said Standart were prior and superior to any right of plaintiff or its predecessors to any of the waters of said creek; and that defendants rightfully did the acts complained of in the complaint, under and by virtue of said prior right of said Standart. The court found in favor of the priority of said right under which the defendants claim, and found that the ditch constructed by Standart in 1885 “ was twenty-seven feet in width at the top, twenty feet in width at the bottom, and thirty inches in depth, and that by means of said ditch and canal, so constructed as aforesaid, the said T. W. Standart did, on or about the first day of March, 1885, appropriate and divert four hundred and twenty-seven (427) cubic feet of water per second, flowing and to flow on a grade of seven feet to the mile.” The court also found that plaintiff and its grantors had acquired and appropriated of the waters of said creek one thousand cubic feet of water per second, but that “their said appropriation of water, and the right to the use thereof, was and is subsequent and inferior to the appropriation of the defendant T. W. Standart of 427 cubic feet of said water.” Judgment was entered accordingly, and plaintiff appeals from the judgment, except that part thereof which awards plaintiff its costs of suit, and also from an order denying plaintiff’s motion for anew trial.
We see no errors committed by the court in arriving at the conclusion that the said T. W. Standart had a prior right to some of the waters of said creek. Appellant contends, among other things, that the court erred in holding that said Standart -was the owner of said prior right, because it appeared that he had conveyed whatever right thereto which he may have had to a corpo[479]
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