Wells v. Mantes

Garoutte, J. This is an action to restrain appellants from diverting the waters of a certain stream, and thereby depriving plaintiff of the use thereof. The plaintiff, by actual diversion, appropriated two thousand five hundred inches of the water of the stream for the purpose of irrigation. Subsequently defendants, at a point a mile or more above plaintiff’s place of diversion, posted notices in accordance with the provisions of the Civil Code, and proceeded to claim and appropriate the waters of the said stream regardless of any rights of plaintiff to such waters obtained by virtue of his actual appropriation. The only question presented by this record is: Can a person, by the actual diversion and appropriation of water, obtain the right to the use thereof as against a claimant who subsequently posts his notices upon a stream, in accordance with section 1415 of the Civil Code, and proceeds thereafter, as required by the statute, to perfect his rights? We have no doubt but that an actual and complete appropriation of the waters of a running stream may be made without following the course laid down in the Civil Code. In De Necochea v. Curtis, 80 Cal. 397, which was subsequently followed in Burrows v. Burrows, 82 Cal. 564, it was decided that such an actual appropriation was good as against a subsequent pre-emptioner of the land upon which the spring was situated, from which the appropriated water flowed. Such was declared to be the law by virtue of the Amendatory Act of Congress of July 9, 1870, which, among other things, provided that “all patents granted, or pre-emptions or homesteads allowed, shall be subject to any vested or accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory.”

It was held that, by virtue of the act of Congress quoted, defendant took his title from the government with a servitude resting upon the land. The spring from which the stream flowed was situated upon the land pre-empted, and therefore was the property of the defendant Curtis. And in contesting De Hecochea’s right to the use of the water running from the spring, the pre-emptioner in no sense could be classed as a mere trespasser seeking to interfere with the rights of the party [585]enjoying the actual possession of the water. He occupied a position much stronger than as a mere subsequent appropriator, for as to such a one it is apparent at a glance he would have had no rights whatever. In order to defeat the defendant's claims in that litigation it was necessary to hold that the prior appropriator had a right to the use of the waters of the stream, by virtue of his actual appropriation and possession, beyond that which was sufficient to defeat a mere intruder, for that term in no sense could be applied to the pre-emptioner Curtis. If a right to the use of the water of the stream, merely sufficient to defend against a trespasser, would not have been sufficient to defeat the pre-emptioner, it follows necessarily that the pre-emptioner, being defeated in that case, the prior appropriator was recognized as possessing vested rights to the use of the water by actual diversion and without complying with the .provisions of the code. It is substantially held in that case that, when the pre-emptioner took his title, he took it with a servitude upon the land; and this servitude was not created by complying with the statute as to the appropriation of water, but by an actual diversion alone. For these reasons we deem that case directly in point upon the question at bar.