Senior v. Anderson

California Supreme Court Dec 31, 1896 No. L. A. No. 119Published

Before: Haynes, McFarland

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Holding. An appropriator's water right is limited to the quantity of water actually applied to a beneficial use within a reasonable time, and the right cannot be enlarged by subsequent diversion for use on other lands or by unreasonable delays in cultivation.

Issues

Whether the evidence supports the finding that the original appropriator's water right equaled the full capacity of his ditch regardless of actual beneficial use.
Whether the use of water on lands other than those for which it was originally appropriated constitutes an adverse use sufficient to establish a prescriptive right against a subsequent appropriator.

Disposition. reversed

Quotations verified verbatim against the opinion

“The purpose of the diversion and the use of the water diverted are the general tests of a valid appropriation as well as of the quantity appropriated.”

“The right to water by prior appropriation is limited in every case in quantity and quality by the uses for which the appropriation is made.”

Synopsis

Water Rights—Appropriation for Irrigation—Capacity of Ditch— Quantity Limited by User—Reasonable Diligence—Abandonment of Part.—An appropriation of water by the owner of land by means of a ditch, for the purpose of irrigation, is not measured by the capacity of the ditch through which the appropriation is made, but the appropriation is limited to such quantitymot exceeding the capacity of the ditch, as the appropriator may put to a useful purpose upon his land within a reasonable time, by the use of reasonable diligence; and if he delays increase of cultivation for an unreasonable time, such delay must be construed as an abandonment of his claim of right to irrigate his whole tract, and the appropriation is limited, as against a subsequent appropriator, to necessary use as applied to the land cultivated within a reasonable time.

Id.—Use of Water upon Other Lands—Measure of Appropriation.— The measure of the quantity of water appropriated by the owner of irrigable land by means of a ditch, is the quantity of water actually appropriated for use upon such land, and although the quantity so appropriated may be used upon other lands, the fact that other lands may be, or are, irrigated from the same ditch, does not affect the quantity of water appropriated by such owner.

Id.— Rights of Subsequent Appropriator — Adverse User—Statute of Limitations—Running of Statute.—The rights of a subsequent appropriator having become fixed by the failure of a prior appropriator to use more than a limited quantity for irrigation within a reasonable time, cannot be defeated otherwise than by an adverse user for the full period prescribed by the statute of limitations; and such statute does not commence to run from the mere construction of ditches, or the laying of pipes, for the purpose of using the water upon the lands, in the absence of a statutory notice of appropriation, but only from the actual adverse use of tlie water upon such other lands.

Id.—Compromise Agreement—Specific Performance—Part Performance of Oral Agreement—Finding—Conflicting Evidence.—To justify the specific performance of a compromise agreement between the parties, respecting their water rights, the fact of the existence of the contract must clearly appear, and, where part performance of an oral agreement of compromise is relied upon, such part performance must be clearly attributable to the contract sought to be enforced; and a finding against the existence or part performance of such agreement will not be disturbed, where the evidence thereupon is conflicting.

Id.—Action to Quiet Title to Water Right — Parties—Defendants Claiming from Common Source—Association—Partnership—Individuals.—In an action to quiet title to a water right, the plaintiffs may join as defendants all persons who claim title from a common source adversely to. that claimed by the plaintiffs, and it is immaterial whether they are a voluntary association, or are copartners, or whether they hold whatever rights they may have as individuals.

Opinion — Haynes

Haynes, C. Action to quiet title to a water right. The defendants had judgment, and the plaintiffs appeal therefrom, and also from an order denying a new trial.

In 1883, J. D. Hines settled upon one hundred and sixty acres of public land through which a small mountain stream known as San Antonio creek flowed, and constructed a dam and ditch by which he diverted from said stream about seventy-nine inches of water, and discharged the same upon said land. No notice of said appropriation is shown to have been made, and its purpose, and the quantity of water appropriated, can only be determined from its subsequent use. That a valid appropriation may be so made, see Wells v. Mantes, 99 Cal. 583. The defendants claim under said appropriation.

Edwin Senior, one of the plaintiffs, in 1886 settled upon one hundred and sixty acres of public land below the Hines place, through which said stream also ran, and on October 29, 1887, posted a notice claiming to appropriate fifty inches of. the water of said stream, measured under a four-inch pressure, and constructed a ditch to convey the same for use upon his said land.

J. D. Hines died in December, 1886, and Alice Hines obtained a patent for the land occupied by J. D. Hines in his lifetime, October 25,1889, and Senior obtained a patent to his land October 30, 1890. The other plaintiffs are vendees of portions of Senior’s land and water right.

The Hines ranch above mentioned was conveyed by Alice Hines to E. S. and W. L. Hall, August 21, 1888J together with the water right appurtenant thereto, and on June 15, 1889, the Halls conveyed said water right but not the land to the Ojai Valley Water Company, a corporation. The persons named as defendants are the members of an unincorporated association, or partnership, composed of the stockholders of said corporation, [500]to which association said corporation conveyed its water right, May 5, 1894. The agreement by which the association was formed divides the interest acquired into one thousand shares, being the same number of shares issued by the corporation, and the said agreement fixed the number of shares to which each member of the association was entitled. The corporation was thereupon dissolved.

The principal question is as to the sufficiency of the evidence to justify the sixteenth finding, which is as follows: “That J. D. Hines settled upon certain lands riparian to the said San Antonio creek, and above the lands of the plaintiffs in this action,,in 1883, and all the water flowing in 4he said San Antonio creek to and upon the lands of the said J. D. Hines in the said year 1883, and ever since, in the ordinary stages of the water, was necessary for uses upon the said lands so occupied by the said J. D. Hines for agricultural and domestic uses; and all of said water flowing in the said stream in ordinary stages, and to the amount of seventy-eight and seventy-seven one-hundredths inches, was diverted from the said stream by the said J. D. Hines and used upon the said lands until the death of the said J. D. Hines, and ever since.”

Senior v. Anderson

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Synopsis

Opinion — Haynes

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