Gould v. Eaton

Harrison, J. The facts involved in the judgment herein are set forth in the opinion given upon an appeal therefrom by the plaintiff. (Gould v. Eaton, 111 Cal. 639; 52 Am. St. Rep. 201.) The present appeal is by the defendants from that portion of the judgment which enjoins them from diverting to lands not riparian to the creek any of the waters naturally flowing in its channel, and from preventing or interfering with the flow directly back into the stream from the mouth of the tunnel constructed by them of one and forty-three hundredths inches of water, measured under a four-inch pressure. The court found that this amount of water was abstracted and diverted from the channel of the stream by reason of the tunnel constructed by the defendants, and the appeal is directly from the judgment upon the judgment-roll without any bill of exceptions.

The finding by the court of the amount of water diverted by means of the tunnel cannot be questioned by reason of the statement therein of the mode by which this amount can be ascertained. The evidence before the court by which it determined that the loss could thus be ascertained is not before us, and it must be assumed that it was of a satisfactory character, and the [542]conclusion of the court thereon must be accepted by us as correct.

To the extent that the water diverted by the tunnel is taken from the stream, the defendants are in no different position than they would have been if Barker, the riparian owner from whom they received the right to construct the tunnel, had given them the right to lay a pipe from the stream and granted them the water that should flow through it. The only right in the riparian land which was granted to the defendants was “ to enter thereon to prospect for water, and to excavate a tunnel to develops the same at a place to be selected by them within thirty days from the date of their agreement, and the right of way over said land for the purpose of making said tunnel.” Under this agreement they selected a place for the tunnel about thirty feet west of the stream, and constructed it in a direction nearly parallel with the stream. The defendants are, therefore, in no respect riparian owners, nor are their rights in the water which flows from the tunnel in any respect those of a riparian owner. The grant from Barker gave them no right in the land which is adjacent to the stream, and they took by the contract no riparian rights in the waters of the stream, and no greater right to these waters than Barker could confer upon any other nonriparian owner.