Cardoza v. Calkins

Van Fleet, J. The action involves the right to the use of the waters of two gulches, known respectively as “ Heybrook Gulch” and “ Barker Gulch,” tributary to Greenhorn creek, in Siskiyou county.

The complaint alleges the ownership in plaintiffs and their predecessors for upward of forty years of a ditch known as the “Cornish & Co.” ditch, which taps said Greenhorn creek, and in its course along the bank of said creek crosses the two gulches named and takes the waters therefrom; that the carrying capacity of said ditch is three hundred inches, measured under a four-inch pressure, and that by means thereof plaintiffs and their predecessors have, during said period and down to the interference of the defendants, appropriated from said creek and said gulches, and devoted to a beneficial use, that quantity of water, which ordinarily included all of the waters of said two gulches; that the plaintiffs right includes the use of the waters of said creek every day between the hours of 6 o’clock p. m. and 6 o’clock a. m., and the waters of said gulches all of the time, both day and night; 'that in January, 1895, within thirty days prior to the bringing of the action, and at a time when there was less than three hundred inches of water available to plaintiffs from said source, defendants without right, by means of flumes, etc., diverted the waters of said gulches from plaintiffs’ ditch to their own use, and have since continued so to do, and refuse to permit plaintiffs to restore said waters to said ditch.

In a separate count the complaint sets up a prescriptive right in plaintiffs to the use of said waters.

The prayer is for an injunction. The answers deny plaintiff’s right, by appropriation or otherwise, to the waters of said gulches, and set up in defendants Smith and Harrison a right to the waters of Heybrook gulch, and in the defendants Calkins and Plummer the right to the waters of Barker gulch.

[108]The court found in plaintiffs the ownership of the ditch as alleged, and an exclusive right to the waters of Greenhorn creek and the said gulches “ from the hour of 6 o’clock p. m. of each day to 6 o’clock A. m. of the following day,” but found “ that the use of the waters of ITeybrook and Barker gulches has never been appropriated, held, or used by plaintiffs or their predecessors in interest, to wit, Morris, Benner, Trustee, and Thomas Orr, as a right during the daytime—that is, between the hours of 6 o’clock A. m. and 6 o’clock p. m., since the construction of said Cornish & Co. ditch. But the waters of said gulches have been used by the miners in main Greenhorn creek and said gulches during the day for many years last past. It further found that the defendant Smith had, during the month of January, 1895, diverted the waters of Heybrook gulch as alleged, and that during said month defendants Cal-kins, Plummer, and Harrison had diverted the waters of Barker gulch, but that such diversion was only during the daytime and was not wrongful as against plaintiffs. It also found against any prescriptive right in plaintiffs.