Silver Creek & Panoche Land & Water Co. v. Hayes

Temple, J. Plaintiffs, in their complaint, aver that the corporate plaintiffs own a certain canal or ditch, of which the individual plaintiffs are in possession as lessees, and that without permission of plaintiffs, or any of them, defendant wrongfully entered upon the same, and without right took water therefrom, and injured the banks thereof, and threaten to continue to enter upon it and to take water therefrom, and will so enter and divert and use water therefrom, and injure and destroy the embankments and head-gates thereof.

And particularly on a day named he did enter in and upon the canal, and, with intent to injure and break said canal, raised the head-gates nearest defendant’s residence, intending that the waters should injure and destroy the canal.

They further aver that defendant will, unless- restrained, enter upon the canal, and without right, and divert water therefrom, and injure and destroy, tear down, remove the embankments and head-gates thereof. They ask that defendant be enjoined from these acts, and for damages.

The defendant answered, and also filed a cross-complaint. Plaintiffs demurred to the cross-complaint for want of sufficient facts, and on the trial objected to evidence in support of the claim of defendant asserted in the cross-complaint on the same ground. The demurrer and the objections were overruled, and the court gave judgment to plaintiffs for all of the relief demanded by them, and then awarded to defendant all the relief asked by him. From the judgment in favor of defendant, and from an order refusing plaintiffs a new trial as to the issues tendered by the cross-complaint, plaintiffs take this appeal.

By the demurrer the point is made that the cross-complaint does not state a cause of action at all, and that it does not state facts sufficient to constitute a cause of action for a cross-complaint in this action.

Both points are well taken. _ The cross-complaint nowhere shows by statement of ts that defendant owns [145]or holds by right any lands which are riparian to Panoche creek. He avers that he owns three lots in section 16, and has possession and control of three other lots, and that said creek flows “through the natural channel thereof over and across the lands of defendant as aforesaid.” This would be true, though the creek only flows over the three lots of which he is possessed, and which he controls but does not own. He does not aver that he possesses or controls by right, and the presumption is that this allegation is as strong as he could make it. The presumption, therefore, is that he has taken possession of' the other three lots without right, and that the water only flows over these lots in which he has no right. A trespasser on public lands is for some purposes deemed the owner, but when one asserts riparian rights as against an upper appropriator of water he must show some right, inchoate or otherwise, to the land.