Gallaher v. Montecito Valley Water Co.
Before: Haven
Synopsis
Water Rights—Diversion of Stream—Prescriptive Right.—In an action by a riparian owner to restrain a water company from diverting the waters of a stream, where the water company claims a prescriptive right in persons whose rights had been condemned by it, a finding that the defendant and his predecessors in title have diverted to their own use from the stream for beneficial purposes the water so condemned, to the extent of the capacity of the boxes and pipes alleged in the complaint to have been used by the defendant for diverting the water, and have used and enjoyed the same for beneficial purposes continuously, openly, notoriously, peaceably, uninterruptedly, and adversely to the plaintiff and all other persons for the period of more than five years before the commencement of the action, is sufficient to show a good prescriptive title in defendant to the water in controversy.
Id.—Use Upon Riparian Land.—The fact that the water so diverted was used upon riparian land, and that the court found that a portion of the waters was used by plaintiff and his predecessors in title for lawful purposes for a period of more than ten years next before the time of the diversion mentioned in the said complaint, and also since said diversions were made, is not inconsistent with adverse user and a prescriptive right to the water diverted, it appearing that the diversion was at a point on the stream above the land of the plaintiff, and that it must have been a continuous infringement upon the right of the plaintiff to the enjoyment of the water naturally flowing in the stream to the extent of the continuous diversion. .
Id.—Change of Place of Diversion—Change of Use.—One entitled to the use of water may change the place of diversion, or the place where it is used, or the use to which it was first applied if others are not injured by such change.
De Haven, J. The plaintiff is an owner of land bordering on the Cold Spring branch of Montecito creek, and this action was brought for the purpose of restraining the defendant from diverting the waters of sáid stream.
[243]The defendant is a corporation organized under the laws of this state for the purpose of supplying water to the inhabitants of a portion of Santa Barbara county, and in its answer alleged that prior to January 14, 1888, John Coe and John W. Coe had acquired a prescriptive right to divert the waters of the Cold Spring branch of Montecito creek to the extent of defendant’s diversion, and were then in the enjoyment of that right, and that on that day the defendant recovered a judgment against said John and John W. Coe condemning their rights in said water, and for a separate defense the defendant alleged that plaintiff’s right of action was barred by section 318 of the Code of Civil Procedure.
The case was tried by the court, and judgment rendered for the defendant, and from this judgment and an order denying his motion for a new trial the plaintiff appeals.
The superior court found that the defendant, on January 14,1888, recovered against John and John W. Coe, the judgment of condemnation alleged in the answer, and “that for a period of more than five years before said fourteenth day of January, 1888, the said John Coe diverted to his own use, for beneficial purposes, from said stream, and used and enjoyed for beneficial purposes the waters thereof, to an amount greater than the quantity diverted by defendant as aforesaid, under claim of right and title, continuously, openly, notoriously, peaceably, uninterruptedly, and adversely to the plaintiff and to all other persons, and with the knowledge and acquiescence of plaintiff and his predecessors in interest. That a portion of the water so diverted and used by said John Coe was diverted and used upon land bordering on said Cold Spring branch.” The court further found that such diversion was continued by the defendant after the judgment condemning the right of the Coes in and to the waters diverted, and that “the defendant and its predecessors in title aforesaid have diverted to their own use, from said stream, for beneficial purposes, the water so condemned as aforesaid, to the [244]
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