Taylor v. Abbott

Harrison, J. The plaintiff posted a notice December 17, 1892, near a spring of water upon certain surveyed public lands in the county of Ventura, stating that he had that day “located” the spring and water right, and “ claimed” all water in the spring and flowing from it. On the same day he made an excavation in the spring [422]about three feet square and three feet in depth, for the purpose of marking the place of his intended diversion. A few days afterwards he bought some pipe and lumber with which to complete the means of diverting the water, but did not in fact make any connection with the spring, or complete his intended diversion of the water. On the 28th of December the defendant went upon the land where the spring was located, took possession thereof, built himself a house, and moved his family into it, and thereafter held possession of the land, and on the 20th of February, 1893, filed an affidavit in conformity with the requirements of the Possessory Act of April 20, 1852. After the defendant had taken possession of this land the plaintiff attempted to complete his diversion of the water from the spring, but was prevented from so doing by the defendant. The plaintiff brought this action February 21, 1893, to enjoin the defendant from interfering with him in completing such diversion. The cause was tried by the court, and judgment rendered in favor of the defendant. Plaintiff lias appealed.

The plaintiff by this action seeks preventive relief for the future, rather than redress for a past wrong; and his right to this remedy is to be determined by the respective rights of the parties as they were at the commencement of the action. At that time the defendant was in possession and occupancy of the land which included the spring, and had filed his affidavit under the Possessory Act. Under the provisions of section 1 of this act (Stats. 1852, p. 158), he was entitled to “ maintain any action for interference with or injuries done to his possession of said land against any person or persons so interfering with or injuring such land or possession,” and would necessarily have the same right to defend his possession and rights in the land in any action brought against him. After he had thus taken possession óf the land any threats or conduct on his part by which the plaintiff was prevented from completing his diversion of the water wrnuld be in support of his own rights rather than a wrong against the plaintiff, unless [423]