Jensen v. Shadburne

McMURRAY, J. pro tem.* Plaintiffs Jensen, through their predecessors in interest in two gold dredging companies, had the right to maintain a dam and ditch at diversion point Number 12 on Seiad Creek. The Jensens succeeded to this right when they purchased the property. In the winter of 1952-1953 storms destroyed Jensens’ diversion works at point number 12 and required the construction of new facilities or the extension of the ditch upstream. Mr. Jensen obtained written permission to extend his ditch upstream toward diversion point number 10 from a certain Mr. Wigley, who was a coowner of the property over which such extension was to be made. Before Mr. Wigley gave permission to the Jensens to extend the ditch over the property here involved he had leased that property to the Seven Oaks Lumber Company. This lease reserved to the lessor the right to use the premises for agricultural purposes. Subsequently, this lease was assigned by the lumber company to the Winkleman Company as security in certain transactions, and the Winkleman Company had gone into possession and employed Shadburne as its agent in actual possession. Shadburne, also, was a beneficiary of a deed of trust on this same property. By a superior court action in Siskiyou County, the plaintiffs’ predecessor gold companies also had the right to take 40 inches of water from diversion point number 10 on the creek. There was a stipulation in that action for judgment that the gold companies, in return for the right to take water at point number 10, would share one-half of the maintenance costs for the diversion works at point number 10 with Mr. Shadburne who was the predecessor in interest of Mr. Wigley.

Acting upon the permission given by Mr. Wigley, the Jensens extended their ditch up the creek to diversion point number 10. Defendant Shadburne then ordered the defendant Bdgecomb to fill it up. This was done. The Jensens then brought suit to prevent Shadburne from interfering with the ditch and for damages for crop losses and for punitive damages.

Shadburne interposed defenses and a counterclaim. He alleged that the construction of the ditch was in violation of a judgment determining the water rights on the creek and as a counterclaim asked for damages for trespass. Shadburne asserted that he had agreed with plaintiffs’ predecessor in interest to furnish 40 inches of water at point number 10, [626]and that they had agreed to share the maintenance costs at diversion point number 10. He asked that plaintiffs be compelled to compensate him for the costs of maintenance at diversion point number 10.