Yocco v. Conroy

Vanclief, C. Action to recover damages for alleged wrongful diversion of water by defendant from plaintiff’s water-pipe, through which he conducted water to his land for the purpose of irrigation; and also to enjoin the defendant from diverting such water perpetually. The cause was tried by the court without a jury, and the judgment was in favor of the defendant. The plain[469]tiff brings this appeal from the judgment on the judgment-roll, and contends that, upon the facts found by the court, the judgment should have been in his favor.

The material substance of the facts found is as follows: In February, 1881, the defendant owned and resided upon a tract of land through which ran a living stream of water called a gulch; and at the same time plaintiff owned an adjoining tract of land, no part of which adjoined or included any part of the stream or gulch. On February 12, 1881, the defendant, by a grant, bargain, and sale deed, conveyed to plaintiff one square rod of land at a certain point in said gulch, through the center of which square rod said stream ran; and by the same deed granted to plaintiff a defined right of way for a water-pipe of one-inch diameter, from said square rod of land to plaintiff’s nonriparian land. After the description of .the land and the right of way, the deed contains the following: “This deed is intended aud does hereby grant and convey to the said party of the second part [plaintiff] the right to lay a one-inch pipe along the above-described piece of land [the way] so as to convey the running water from said gulch to and over the land of the said party of the second part, perpetually and forever.” In the month of February, 1881, the plaintiff laid his pipe on the granted way and connected it with a box at a point in the stream, within the boundaries of said square rod of land; and thence, until the summer of 1889, without interruption or objection, conducted water from the stream to his land to the full capacity of the pipe, except during such times as there was not sufficient water in the stream to supply the full capacity of the pipe, when he took all the water running in the stream above the head of his pipe. The findings of the court as to the use of the water by plaintiff, and the diversion thereof by defendant, are as follows:

“4. The plaintiff has maintained said box and pipe as aforesaid continuously ever since said twelfth day of February, 1881, and has continuously conducted and [470]