Utt v. Frey

California Supreme Court Mar 13, 1895 No. No. 19530Published

Before: Searls

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Holding. A party who takes peaceable possession of a ditch on public land and appropriates water for a useful purpose acquires a right superior to subsequent appropriators, regardless of whether they hold the original title to the ditch. Abandonment of such a water right requires both the act of relinquishing possession and the intent to abandon, neither of which was established here.

Issues

Whether a deed of conveyance for a water right and ditch is admissible when the grantor lacked legal title but held prior possession.
Whether the plaintiff's water right was lost through abandonment.
Whether a finding that the plaintiff owned the ditch since 1874 was reversible error when the evidence supported ownership only since 1882 or 1883.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Prior possession of real property is evidence of ownership, and, as against those who do not connect themselves with the title, such prior possession gives a superior right”

“To abandon such right is to relinquish possession thereof without any present intention to repossess. To constitute such abandonment there must be a concurrence of act and intent”

“The error is technical, could not harm the defendant, and is not cause for reversal”

Synopsis

Water Rights—Possession or Ditch in Land or Another— Conveyance by Possessor.—Where a settler upon public lands of the United States constructed a ditch to convey the waters of a creek to his house and lands for domestic purposes and irrigation, and upon his death his son in law, without transfer of any rights from his heirs, took possession of the property and utilized the ditch for the appropriation of the water of the creek for domestic purposes and for irrigation of the land, the son in law of the deceased owner thereby acquires a right by his possession of the land and ditch which he can convey to a third party, and which, if not lost by abandonment, is prior in time and superior in right to the claim of a subsequent riparian proprietor whose right did not vest until after the transfer of the ditch and water right by the possessor thereof.

Id.—Date or Possessory Right.—Where there is no transfer of the rights of a prior possessor or owner of land and a water right appurtenant thereto, a right acquired by subsequent peaceable possession of the land and appropriation of the water for useful purposes, dates from the date of the possession and appropriation. '

Id.—Abandonment or Water Right.—To abandon a water right acquired by the use of water by appropriation there must be a concurrence of the act of leaving it so that it can be appropriated by the next comer, without the intention to repossess it; and the mere intention to abandon it, not coupled with a yielding up of possession or cessation of user,' is not sufficient, nor will nonuser alone, without intention to abandon, be held to amount to an abandonment.

Id.—Water Right—When not Abandoned. —The facts that after the conveyance of a ditch and water right to the plaintiff but little water was used from the ditch for irrigation, and that the ditch became so obstructed that it would conduct but a small quantity of water, do not establish an abandonment of the ditch and water right, where it appears that the ditch was used continually to convey water for domestic purposes, and to some extent for irrigation, and that the intention of the plaintiff to retain his right was made manifest to the defendant by his course of action.

Searls, C. This is an action to quiet the title of plaintiff to the water of the San Luis Rey river and its tributaries, and more particularly the water of Paubal creek, a branch of said river, and of a certain water ditch taking water therefrom, known as the Ardillo ditch, and formerly known as the Paubal ditch, situate in the county of San Diego, and used by plaintiff to conduct the water of said Paubal creek to certain land and premises of plaintiff described in the complaint.

The answer denied most of the material allegations of the complaint; admitted plaintiff’s ownership of the land described in the complaint, riparian to said stream, and by way of cross-complaint set up ownership of certain land, riparian to said stream, and ownership of all the water of Paubal creek, etc.

The cause was tried by the court without a jury, written findings filed in favor of plaintiff, establishing his title to twenty-five inches of the water of Paubal creek, upon which judgment was entered, establishing the right of plaintiff to the Ardillo ditch, and to the prior right to the use of twenty-five inches of water of said Paubal creek during the irrigation season of each year, viz., from April 1st to November 1st of each year, etc. Defendant appeals from the judgment and from an order of the court denying his motion for a new trial. [394]The first error assigned by appellant is predicated upon the admission in evidence of a deed of conveyance of the Paubal water right and ditch, dated July 15, 1887, by Luis Ardillo to the plaintiff herein.

Its admission was objected to upon the ground that it was “ irrelevant, immaterial, and incompetent.”

The following statement is essential to a comprehension of the point made and other questions raised by appellant. There was testimony tending to show that as early as 1874 (all the lands now owned by plaintiff and defendant being then vacant, unoccupied public lands of the government of the United States), one Samuel Paubal settled upon the tract of land now owned by the plaintiff, known as the Paubal tract, and constructed a ditch from Paubal creek to said tract of land through which he diverted the water of said creek and conducted the same to his house and land, where he used it for domestic purposes and for irrigating a small vineyard, fruit trees, and several acres which he cultivated in corn, peas, etc.

Paubal continued to own and occupy the ditch until 1882 or 1883, when he died. Thereupon Luis Ardillo, a son in law of Paubal, without acquiring the legal title thereto by any conveyance, took possession of said land and ditch and continued t:: possess, occupy, and use them, including the water of said Paubal creek, through said ditch, until 1887, when he conveyed the land to one Magee, and the ditch and water right to plaintiff. Magee homesteaded the place in 1887, commuted the same April 18,1889, and received a patent therefor from the United States dated January 19, 1891. Magee conveyed the Paubal tract of land to plaintiff October 2, 1889.

Utt v. Frey

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