Santa Paula Water Works v. Peralta

Britt, C. In this action the court below adjudged that the plaintiffs, as tenants in common, have the right to divert and use the water of the Santa Paula creek, in Ventura county, to the extent of six hundred inches, measured under a four-inch pressure, subject, however, to the superior right of defendant to divert and use fifty inches of the water, measured, as aforesaid, during “one day of twenty-four hours in each week, from Saturday afternoon to Sunday afternoon,” and subject to the further right of defendant to take one-half an inch of water in constant flow, to be used only within a specified section of land. All parties have appealed from the judgment. Plaintiffs claim that on the findings made by the court they should have- been awarded six hundred inches of water absolutely, and that the judgment should be modified accordingly; while defendant contends that he is aggrieved in several particulars, and that the judgment should be reversed in order that a new trial may be had.

The court found, among other matters, that in the year 1865 the defendant diverted by means of a ditch then constructed by him, having capacity to carry one hundred and twenty inches of water, a part of the flow of said-creek (the course of which lay mainly through public lands of the general government), and applied the same to the irrigation of certain land which he held by mere occupancy, and to other purposes; he was then an alien and had not declared his intention to become a citizen of the United States; on December 11, 1867-, [42]he declared such intention pursuant to the naturalization laws; in 1869 he established his residence on public land in a certain section 34, upon which in 1881 he filed a pre-emption claim; he continued to live in said section until 1886, when he removed therefrom; prior to 1869 he extended his ditch and conducted the water previously diverted by him to the vicinity of his house in said section 34, where he used the same for irrigation, domestic purposes, and the watering of livestock as before. It sufficiently appears that he utilized the water by means of his ditch for the purposes stated, with only occasional interruptions, during the space of twenty-seven years beginning in 1865. It was his custom to turn on the water for irrigation one day in the week—Saturday afternoon to Sunday afternoon—and then to return it into the stream, excepting such quantity as was necessary for watering his stock and for domestic purposes; and the court found that he had ceased any use of the water except as above stated. It was further found that, since the year 1872, when the quantity of water in the creek was less than six hundred inches, the defendant has used for irrigation no more than fifty inches. Among the “conclusions of law” appears the following: “The defendant is also the owner of the right to use one-half an inch of water, measured under a four-inch pressure, constant flow, at the place where his house was located on section 34 . . . . and, to secure such flow, is entitled to divert sufficient water to produce that amount through his ditch to the place of use.”