Barker v. Gould

HARRISON, J. The plaintiff is the owner of certain lands in the county of Santa Barbara, situated upon both sides of a natural stream of water known as Cold Spring creek, which rises at a point north of the plaintiff’s land and flows through his premises into lands belonging to the appellants, which border upon the stream and lie south of and below the plaintiff’s lands.

Between July 1, 1894, and the commencement of this action, the plaintiff constructed a tunnel upon his land, on the east side of the creek, into which the water percolates from the adjoining land and produces a stream which flows from its mouth, discharging at that point about four and one-half inches of water under a four-inch pressure. The mouth of the tunnel is adjacent to the east bank of the creek, at an elevation of about five feet above the creek, and the tunnel runs from that point one hundred feet in a direction nearly at right angles with the creek; thence in a northerly direction and nearly parallel with the general course of the creek four hundred and fifty feet; thence in a northerly direction, gradually diverging from the course of the creek, three hundred and seventy-five feet, where it terminates at a point about six hundred feet from the creek, measured along the strike of the strata. The tunnel is constructed with a slight elevation from a horizontal line, so that at a distance of forty feet from its mouth it passes below the [242]level of the creek, and at its "breast, or inner end, its floor is at a depth of one hundred and twenty feet below the level of the creek.

The appellants, other than the Monteeito Water Company, are the owners of certain lands which are riparian to the creek, and1'situate south of and below the lands of the plaintiff, and the. water company claims the right to the use of a portion of the waters of the creek under a grant from them.

The plaintiff alleges that he is the owner of all the water which flows from the tunnel, and that the .defendants make some claim against him to the water entering and flowing from the tunnel, the exact nature of which is unknown to him, but that their claim thereto is without right, and asks that they be required to set forth their respective claims, and that it be adjudged that they are invalid and void as against him, and that he is the owner of all the water entering the tunnel and discharging therefrom. In their answer to the complaint, the appellants set forth their ownership of the lands as above, and that they are riparian to the creek, and allege that the water which enters the tunnel and is discharged therefrom is a portion of the water naturally flowing in the creek, but which, by reason of the nature of the rock through whiph the tunnel is excavated, has been abstracted from the creek; that such abstraction by the plaintiff is without right, and is an infringement upon their right to have all the water which naturally flows in the creek flow down to and through their lands.