Eldridge v. Scott Lumber Co.

WARNS, J. pro tern.* This is an appeal from a judgment awarding damages resulting from the wrongful diversion of riparian waters by appellant from a natural creek which crosses the respondents’ land.

Respondents, who are the owners of a 160-acre parcel of land in Lassen County, alleged that the land is riparian to Beaver Creek, which flows across the land in question; that by virtue of their ownership of said property bordering on Beaver Creek they have for more than 70 years used, and now are using, all of the water therefrom (except as such use has been interfered with by the appellant) for stock, domestic and agricultural purposes; and that all the water of Beaver Creek has been, and still is, reasonably necessary for those purposes. The complaint further alleges that the appellant unlawfully dammed up Beaver Creek at a point upstream from the land of respondents and diverted water out of the natural channel of the creek in 1954 and 1955 with the result that water failed to reach respondents’ property in sufficient quantity to water respondents’ cattle.

The record shows that normally Beaver Creek has a continuous flow until July when the creek dries up in the area of respondents’ 160-acre parcel of land, but by the middle of September water is again flowing downstream as far as the 160-acre field.

The property in question is part of a 320-aere fenced enclosure and lies to the south of respondents’ home ranch and within 500 yards of the north boundary of Lassen National Forest. Respondents lease some 60,000 acres of forest land from the Lassen National Forest for grazing purposes through [459]the summer until October 15th each year. The 160-acre parcel is used by respondents as their holding field in the spring when the cattle are to be put out on the Forest Service range and again in October as they are taken off.

In 1954 the appellant entered into an agreement with the Forest Service, United States Department of Agriculture, for the purchase and removal of government timber from an area in the vicinity of Beaver Creek and upstream from respondents’ land. The contract authorized appellant to build roads on the national forest lands and to improve Forest Service roads for hauling forest products from the sale area; provided, that such road engineering construction or improvement was approved in advance by the Forest Service officer in charge and in accordance with government specifications.