Higuera v. Del Ponte

HALL, J. Appeal from judgment in favor of defendants Del Ponte and Pérsico, and from the order denying plaintiff’s motion for a new trial.

The action is in form an action to quiet title to a tract of land described as “lot seven (7) of the Higuera Rancho,” but, as appears from the answer of defendants Del Ponte and Pérsico, and from the statement on motion for new trial, the only real controversy in the case was as to the ownership of certain water flowing from a spring on lot 7 of said rancho, through an iron pipe, to lot 4 of said rancho, and the right 5of way therefor. Defendants pleaded that they were the owners, of said water, water right, and right of way, and specially pleaded “that for more than five years prior to the commencement of this action they and their grantors have been in the open, notorious, continuous, peaceful, uninterrupted use and occupation of all that part or portion of said water flowing from the said spring on said lot seven of said Higuera Rancho, and to the said lot four of said Higuera Rancho; that the said use and occupation of said water as aforesaid has been for all of said time hostile and adverse to any claim of all persons, and that the said water had been so used by the said defendants and their grantors with the full knowledge of the said plaintiff. ’ ’ The court found the facts in accordance with the plea of the prescriptive right thus set up, and gave judgment accordingly. Appellant attacks the sufficiency of the evidence to sustain this finding.

This action was commenced July 21, 1903. The Higuera Rancho, prior to her death, belonged to the mother of plaintiff. In 1886 she caused a pipe to be laid from a spring situate on lot 7, now the property of plaintiff, to lot 4, now the property of defendants, for the purpose of conveying water to the family dwelling, which was situate on the portion of the rancho now known as “lot 4.” From that time [322]until the commencement of this action it is perfectly clear that the pipe has remained and water has run through it and been used by the various, and successive owners of that portion of the rancho (lot 4), for irrigating an orchard and the usual domestic purposes. Mrs. Higuera died in 1889. October 8, 1891, as the result of a suit in partition, a decree of partition was rendered by the superior court of Santa Clara county, in which lot 7 of said rancho was awarded to plaintiff herein, and lot 4 to Martin Higuera, a brother of plaintiff, who died before the trial of this action. The only reference to water rights in the said decree is in these words: “And it was then and there in open court agreed by all the parties having interests in said land and premises that said Bernardo Higuera should have the ownership and exclusive use of the two springs of water nearest his house on said land.”