Cameron v. Feather River Forest Homes

PLUMMER, J. The defendant Feather River Forest Homes, sued as a corporation, was found by the court to be a copartnership consisting of the defendants George C. Mansfield and Duncan C. McCallum.

The plaintiffs began this action against the defendants to establish their riparian rights to the waters of Berry Greet, a stream arising in the Sierra Nevada Mountains and flowing westerly through the county of Butte; also, to restrain the defendants from maintaining a certain dam erected by the defendants impounding the waters of the said creek.

The record is before ns upon the judgment-roll alone, and presents only one question for our consideration, to wit': That the words — “and the plaintiffs and defendants, other than Feather River Forest Homes, are perpetually enjoined and restrained from interfering in any manner with the maintenance of the dam across Berry creek, hereinbefore referred to”- — should be stricken from the judgment.

The findings are to the effect that the plaintiffs in the action are all riparian owners to the waters of Berry Creek, and are entitled to the waters thereof in the respective amounts found by the court, which rights are prior to the impounding of any of the waters of Berry Creek by the copartnership doing business under the fictitious name of Feather River Forest Homes.

The answer of the defendant Feather River Forest Homes, a copartnership, sets forth that in 1928 said defendant erected a dam across Berry Creek on real property belonging to the partnership, at a cost of about $25,000; that in the year 1929 this dam was washed out, and thereafter a .district was organized, designated as “Road Improvement District No. 1”, in Butte County, upon the petition of the copartnership, and a dam and causeway erected across said Berry Creek, on property belonging to the said copartnership, at a cost of something over $63,000; that by the erection of this dam, in addition to furnishing [375]a highway across the same, a lake covering about thirty acres in area was created by holding back the waters of said creek, and since said date has been used for boating, fishing, bathing and other uses incidental to the erection of homes on the real property owned by the copartnership; that this dam does not appreciably decrease the flow of the waters of Berry Creek to any material extent, and is made use of for the purposes above mentioned without any pollution of the same.

It is further set forth in the answer that Road Improvement District No. 1 of Butte County is a public agency, and that no protest or complaint was made by any of the plaintiffs against the erection of said dam. The prayer of the answer was to the effect that the plaintiffs take nothing by reason of their action, and that the defendants have such other and further relief as to the court might seem just and equitable.