Watterson v. Saldunbehere

California Supreme Court Jan 17, 1894 No. No. 18172Published

Before: Belcher

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Holding. The court held that the plaintiff acquired a valid prescriptive right to the water through actual appropriation and use for over ten years, and that the defendant was liable for damages and injunctive relief due to the pollution and diversion of said water.

Issues

Whether the plaintiff acquired a valid water right without complying with Civil Code appropriation procedures.
Whether the defendant's diversion and pollution of the stream constituted actionable injury to the plaintiff's water rights.
Whether the trial court erred in its evidentiary rulings regarding the defendant's past use of the stream.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence clearly shows that McLaughlin and the plaintiff had actually appropriated and used the water for more than ten years before the defendant interfered with it, and the law is now settled that where there has been an actual appropriation of water, a right to it is acquired, without following the course laid down in the code.”

Synopsis

Water Rights—Appropriation—Compliance With Civil Code.—Where there has heen an actual appropriation and nse of water, a right to it is acquired regardless of compliance with the provisions of the Civil Code for the acquisition of water rights.

Id.—Diversion op Water—Damages—Injunction—Pleading—Joinder of Causes.—An action to recover damages for the diversion and pollution of a stream of water to the injury of a prior appropriator, may be properly joined with a cause of action to obtain an injunction restraining its further diversion and pollution.

Id.—Herding and Watering Sheep Upon Stream—Improper Evidence. Where one has appropriated and used the water of a stream for more than ten years before the defendant interfered with it, and complained only of interference during the month previous to the.commencement of the action, evidence upon the question whether the defendant herded and watered sheep upon the stream for a period of seven years prior thereto, is immaterial and incompetent.

The use of water for domestic purposes and watering cattle are preferred uses; and the defendant had a perfect right to use a portion of the waters of the north fork of the creek for watering his sheep. (Bear River & Auburn W. & Mining Co. v. New York Mining Co., 8 Cal. 327; Washburn on Easements, 223, 224; Ferrea v. Knipe, 28 Cal. 341; Hale v. McLea, 53 Cal. 579; Gould on Waters, sec. 203.) The defendant has the same right to the reasonable use of the waters of the creek for domestic purposes and watering stock as the plaintiff had; and if necessary for those purposes he had the right to consume all the waters of the stream. (Bear River etc. Co. v. New York Mining Co., 8 Cal. 327; Ferrea v. Knipe, 28 Cal. 341; Hale v. McLea, 53 Cal. 579; Lux v. Haggin, 69 Cal. 259; Washburn on Easements, 223, 224; Gould on Waters, sec. 203.) Neither plaintiff nor his predecessors or grantors ever acquired any right to the waters of said creek by appropriation or otherwise, as no notice of intention to appropriate the waters was ever given, or any claim made to the waters of the creek. (Osgood v. El Forado etc. Co., 56 Cal. 571; Civ. Code, sec.-1410.)

Richard 8. Miner, for Respondent.

Conceding that plaintiff and defendant were riparian proprietors equally entitled to use the water, still the defendant had no right to pollute it. (Bear River etc. [109]Co. v. New York Mining Co., 8 Cal. 333.) But plaintiff had the prior right to all the waters of the creek, and is therefore entitled to be protected in his use of it. (Heilbron v. The ’76 Land and W. Co., 96 Cal. 7; Saint v. Guerrerio, 17 Colo. 448; Ramelli v. Irish, 96 Cal. 214; Phoenix Water Co. v. Fletcher, 23 Cal. 482; Parks Canal and M. Co. v. Hoyt, 57 Cal. 44; Natoma W. & M. Co. v. McCoy, 23 Cal. 491; Lux v. Haggin, 69 Cal. 379, 387, 390, 394; Hill v. King, 8 Cal. 337; The Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143; Ortman v. Dixon, 13 Cal. 33; Burnett v. Whitesides, 15 Cal. 35; The Nevada Water Co. v. Powell, 34 Cal. 109; Higgins v. Barker, 42 Cal. 233; Junkans v. Bergin, 67 Cal. 267; Osgood v. Water & M. Co., 56 Cal. 571; Brown etc. v. Mullin, 65 Cal. 89; Necochea v. Curtis, 80 Cal. 397; South Yuba W. Co. v. Rosa, 80 Cal. 333; Burrows v. Burrows, 82 Cal. 564; Civ. Code, sec. 1414.) Plaintiff, his predecessors and grantors, as against defendant, have acquired a priority of right to the use of said water, which prior right, by lapse of time, has merged into a title by prescription. (Osgood v. W. & M. Co., 56 Cal. 571; Kimball v. Gearhart, 12 Cal. 28; N. C. & S. Canal Co. v. Kidd, 37 Cal. 310; Weaver v. Eureka L. Co., 15 Cal. 272; Necochea v. Curtis, 80 Cal. 397; South Yuba W. Co. v. Rosa, 80 Cal. 333; Burrows v. Burrows, 82 Cal. 564; Alta L.& W. Co. v. Hancock, 85 Cal. 219; Cox v. Clough, 70 Cal. 345; Coonradt v. Hill, 79 Cal. 587; American Co. v. Bradford, 27 Cal. 361; Crandall v. Woods, 8 Cal. 136; Davis v. Gale, 32 Cal. 27; Yankee Jims U. W. Co. v. Crary, 25 Cal. 504.) The appropriation was made in 1863, before the codes were adopted, and therefore it was not necessary to post or record notice as required by said code. (Coonradt v. Hill, 79 Cal. 587; Necochea v. Curtis, 80 Cal. 397; Burrows v. Burrows, 82 Cal. 564; Alta Land and W. Co. v. Hancock, 85 Cal. 219.) The court did not err in sustaining the objection to the question asked the witness as to his herding sheep in former years. The witness was allowed to answer as to the year 1892 as being admissible only on the issue as to the amount of damages.

Watterson v. Saldunbehere

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