Conrad v. Arrowhead Hot Springs Hotel Co.

California Supreme Court Jul 24, 1894 No. No. 19376Published

Before: Searls

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Holding. A subsequent appropriator of water from a stream cannot maintain an action for nuisance against a prior user whose established drainage practices caused the water's contamination before the appropriator's rights were acquired.

Issues

Whether a subsequent appropriator of water may enjoin a prior riparian user from continuing established drainage practices that pollute the stream.
Whether the discharge of sewage into a stream by a prior user constitutes an actionable nuisance against a subsequent appropriator.

Disposition. reversed

Quotations verified verbatim against the opinion

“The second appropriator simply takes the residuum in quantity, subject to the changed conditions existing by reason of the prior user.”

“Locators and appropriators of the waters of a stream have no rights antecedent to the date of their location.”

“The judgment and the order denying a new trial, and each of them, should be reversed, and a new trial had.”

Synopsis

Water Rights—Pollution of Stream by Riparian Owner—Subsequent Appropriation.—Where a hotel company, which is a riparian owner upon an unnavigable stream, has, for a period of ten years, drained its refuse matter by means of sewers and pipes into the stream, whereby the waters thereof have been polluted so that they are unfit for drinking or any domestic purpose, a subsequent locator who diverts the water from the stream at a point below the hotel, for domestic purposes, and for the irrigation of nonriparian lands, cannot complain of the pollution of the stream.

Id.—Rights of Appropriators.—Locators and appropriators of the waters of a stream have no rights antecedent to the date of their location; and, if others have, prior to their location, decreased the quantity of the water flowing in the stream, or caused a deterioration of its quality, the subsequent locator cannot complain.

Id.—Nuisance—Equality of Rights—Priority of User of Stream.— The rule that a person who constructs a drain or cesspool upon his own premises, and uses it for his own purposes, is bound to keep the filth collected there from becoming a nuisance to his neighbors, applies between parties who have equal rights to the enjoyment of their own property, but does not apply in the case of appropriators of running water where there is no mutuality of right, and their titles or rights are not coextensive as to time, or equal in rank; but the second appropriator simply takes the residuum in quality, subject to the changed conditions existing by reason of the prior user.

Searls, C. This action was brought to abate a private nuisance, and for a perpetual injunction against its continuance.

Plaintiffs had judgment granting them a perpetual injunction, and for nominal damages. Defendants moved for a new trial, which was refused.

Two separate appeals are taken; one from the final judgment, and the other from the order denying a new trial. Both appeals are elucidated by the same transcript.

There is also a separate appeal in the same case (No. 19193), from an order refusing to dissolve a preliminary injunction issued in the cause, the result of which depends upon the decision of the other appeals, which will be considered together.

Plaintiffs are the owners of certain tracts of non-riparian lands in the county of San Bernardino, forming a part of a larger tract known as the “ Orange Grove tract.”

Defendant, the Arrowhead Hot Springs Hotel Company (a corporation), is, and it and its grantors have been since 1882, the owners in fee of a tract of land situate upon both sides of, and including the bed and banks of, East Twin creek, an unnavigable stream, which lands, the court finds, “are, and from time immemorial have been, riparian to said creek and its flow.”

There are upon the lands of said defendant a large number of springs, hot, cold, and medicinal, and also what are designated as mud baths.

Defendant has upon said land, and for ten years prior to the commencement of this action had, a hotel thereon as a resort for invalids, with bath-houses, mud baths, etc., all of which are used for the entertainment of guests and treatment of invalids generally, whether suffering from rheumatic troubles, diseases of the blood, or other [401]diseases. During all of said ten years defendant has discharged from his kitchen, bath-houses, hotel, privies, etc., the drainage and accumulation of filth and refuse matter therein accumulating, by means of sewers, pipes, etc., into certain ravines contiguous thereto, from and through which ravines it flows by natural channels into and down East Twin creek, and pollutes the waters thereof so that they are unfit for drinking or for any domestic purpose.

Plaintiffs have a ditch which diverts the water from East Twin creek about one-half mile below where defendant discharges its sewage into the stream, by which, and a pipe line connected therewith, they conduct the water of said creek to their land for domestic purposes and for irrigating their land.

Conrad v. Arrowhead Hot Springs Hotel Co.

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