Riverside Water Co. v. Sargent

Britt, C. This action concerns the relative rights of the plaintiff, a corporation, and the defendant, Timber Ditch Water Company, also a corporation, to the use (acquired by appropriation) of water flowing in the Santa Ana river in San Bernardino county; each share of the stock of said Timber Ditch Company represents the right of the holder thereof to use for a definite time all the water owned or controlled by the company, and the interest of the other defendants arises from their ownership of shares of such stock, and consequent right to an apportionment of the water. It is alleged in the complaint that plaintiff is the owner of all the water of the river at the point where defendants, by means of a dam and ditch, diverted therefrom “a large amount of water belonging to plaintiff, to wit, upwards of one thousand inches measured under a four-inch pressure.” Defendants, by their answers, denied that plaintiff is the owner of all the water of the river, and averred a superior right in the Timber Ditch Company to divert-such water, by means of said dam and ditch, “to the extent of one thousand inches measured under a four-inch pressure, in constant flow, for the use and benefit of its stockholders,” and that any right of the plaintiff to the water is subject to such priority of the ditch company. It is thus apparent that the controversy is whether the ditch company has any right to take water from the river, and, if it has, how much.

It was proved at the trial that above the head of said ditch the river is divided into two channels, called, respectively, the north channel and the south channel, and that the ditch proceeds from the former of these, the south channel being at that point about half a mile distant.

The court found that plaintiff is the owner of all the water flowing in the river at the point where the dam complained of was constructed, “except so much thereof as defendants are entitled to take and use, as hereinafter stated”; that the defendant, the Timber Ditch Water Company had, for more than six years before the com[233]mencement of the action, continuously diverted water from the river by means of said dam and ditch, and has the right to take the water by those means “to the extent of the full capacity of said ditch, and .... during the irrigating season, .... to wit, from the fifteenth day of April to the fifteenth day of September of each year, „ ... to the extent of all the water being and flowing in said river at the place of said diversion.” The judgment was in substantial accord with said findings; plaintiff appeals.