Smith v. Hawkins

Water Rights—Appropriation—Excess op Water—Finding against Evidence.—Where the plaintiff claims the waters of a creek by virtue of a prior appropriation, and the defendant by a subsequent diversion and prescriptive right, a finding that, during the time the defendant has diverted the water, an excess has flowed in the creek above the ca. paeity of both ditches, is not sufficiently supported by the mere observation of the trial judge who visited the premises once near the close of the rainy season, just prior to the judgment, where the other uncontradicted evidence adduced upon the trial shows that all of the water of the creek was taken in one of the ditches during one season.

Id.—Rights op Appropriator op Water—License—Easement—Congressional Grant.—An appropriator of water which is conveyed across the public domain is a licensee of the general government; hut when such part of the public domain passes into private ownership, it is burdened by the easement granted by the United States to the appropriator, who holds his rights against the land under an express grant of Congress by the act of 1866.

Id.—Acquisition of Prescriptive Right.—A prescriptive right cannot be acquired against the United States, and can be acquired only by one claimant against another private individual; and one who claims a right by prescription must use the water continuously, uninterruptedly, and adversely for a period of at least five years, after which time the law will conclusively presume an antecedent grant to him of his asserted right.

Id.—Construction op Code—Extinguishment op Servitude Acquired by Enjoyment—Prescriptive Right.—Section 811 of the Civil Code, which provides that when a servitude is acquired by enjoyment, disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment extinguishes the servitude, deals only with the extinguishment of servitudes resting upon prescriptive right, and not of one conferred by express grant from the United States to a prior appropriator.

Id.—Disuse op Water Appropriated—Forfeiture op Right—Period op Disuse—Construction op Code.—Section 1411 of the Civil Code, which declares that the appropriation of water must he for some useful or beneficial purpose, and that, when the appropriator, or his successor in interest, ceases to use it for such purpose, the right ceases, deals with the forfeiture of the right by nonuser alone as distinguished from abandonment; and, by analogy, this section must he construed as making a cessation of the use by the appropriator work a forfeiture of his right, -• where there is a failure to make any beneficial use of the water for a period of more than five years, and, in such case, a subsequent appro- ■ priator for a beneficial use acquires a right to the water.