Patterson v. Mills

California Supreme Court May 20, 1902 No. Sac. No. 909Published

Before: Smith

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Holding. The court reversed the judgment because the findings failed to address whether the defendants' predecessors acquired paramount water rights through prior appropriation on public domain, and because the evidence did not support the plaintiff's claim of adverse user.

Issues

Whether the trial court's findings sufficiently addressed the defendants' claim of prior appropriation on public domain land.
Whether the evidence supported the trial court's finding of adverse user by the plaintiff.
Whether the defendants retained a right to use the plaintiff's upper ditch based on a prior agreement for joint use.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The findings, therefore, fail to dispose of a material and important issue in the case; for, if the allegation of the defendants is true, the defendants’ predecessor, by his appropriation of the water, acquired a right to it paramount”

“As to the other, it is clear that the finding cannot be maintained.”

“We therefore advise that the judgment and order appealed from be reversed and the cause remanded for a new trial.”

Synopsis

Water Eights—Priority.—Where the Defendant Alleges, in an Action Involving the priority of right to take water from a stream, that his ditches were constructed prior to those of plaintiff, at a time when the lands described in the complaint were vacant and unappropriated public lands, the failure to find on such allegation vitiates a verdict for plaintiff, as such facts would render defendant’s right paramount to the right of plaintiff.

Appeal.—Where the Evidence Eelating to a Finding of Fact is Conflicting, the finding will not be disturbed on appeal.

Water Eights—Priority.—The Evidence in an Action to determine the priority of right to divert the waters of a river claimed by plaintiff, who was a lower riparian owner, by adverse user, showed that plaintiff for a number of years had removed dams erected by defendant, but that the latter had rebuilt them. Plaintiff’s ditches were originally constructed under a license from a former owner of defendant’s lands, and had originally connected with the ditch of such former owner, and one of the ditches was constructed for the joint use of the parties. Held, insufficient evidence of adverse user to establish plaintiff’s prior right.

Water Eights.—Where a License to Construct a Ditch is given on consideration that the ditch shall be for the joint use of the licensor and licensee, the right of the licensee to use the ditch can only be lost by abandonment.

SMITH, C. The object of this suit is to determine the reciprocal rights of the parties to the waters of Shasta river, which flows in a general northeasterly course first through [930]the lands of the defendants, and then through those of the plaintiff. The plaintiff recovered judgment, from which and an order denying a new trial the defendants appeal.

The plaintiff is the owner of two ditches heading on the defendants’ land; the upper on the east, the lower on the- west, side of the river. The upper ditch is alleged and found to be of a capacity of two hundred and fifty inches; the lower of one hundred and fifty (both measured, it will be understood here and elsewhere, under a four-inch pressure); and it is found by the court that for forty-five years or more (i. e., from the year 1855) the water of the river, when sufficient for both parties, has been habitually diverted and adversely used by the plaintiff and his grantors in the irrigation season to the full capacity -of the ditches, and that when the water became insufficient (which was about the month of July each year) one-half of the water flowing in the river at the upper or south boundary of defendants’ land was so diverted and used. The defendants are the owners of three ditches heading above those -of the plaintiff, known respectively as the “Reese Ditch,” the “Beaver Dam Ditch,” and the “Stewart Ditch,” which, it is alleged, were constructed the first two in the year 1853-, the third in the year 1854, at which times all the lands described in the complaint were vacant, unappropriated public domain, and the plaintiff’s ditches were not existing. The first, as constructed, was of the alleged capacity of two hundred, the second of one hundred, and the third of one hundred and fifty, inches. These ditches, it is alleged, have ever since continued to be of the same capacities, and by means of them the waters of the river were appropriated, and have ever since been diverted to the full extent of their capacities, and used on the lands now owned by the defendants, then occupied by their predecessors in title. The defendants also claim to be entitled to one-half the water flowing in the plaintiff’s upper ditch, but this claim (which was rejected by the court) will, for the present, be left out of consideration. Thus it will be seen that the plaintiff claims four hundred inches of water when, there is eight hundred inches or more in the river, and when there is less one-half; and that the defendants claim four hundred and fifty inches at all stages of the water. But it is alleged in the complaint and found that until the month of July of each year there is sufficient water to supply the claims of both parties, and

Patterson v. Mills

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