I dissent. This case involves certain water rights, and the appeal is by plaintiffs from a judgment in favor of defendants, from an order denying their motion for a new trial, and from an order denying the plaintiffs' motion to strike out defendants' cost bill, and refusing to strike out certain items in said bill.
There was an appeal to this court from a former judgment in favor of defendants, wherein the judgment was reversed and a new trial ordered. The decision on that appeal is to be found in 115 California Reports, commencing at page 496, where the general features of the case are stated. The defendants claim the water rights which they assert here through J.D. Hines and his successors in interest; and it is beyond all question that defendants and their predecessors have since the year 1883, and under claim of right, continuously diverted the waters of San Antonio creek to the extent of seventy-eight and seventy-seven one-hundredths inches, measured under a four-inch pressure, by means of a certain *Page 302 flume and ditch, when that amount was flowing therein, and when less than that amount was so flowing in the creek, they have thus diverted the whole of said waters; and the court correctly and upon sufficient testimony so found. The only important question on both trials was whether or not during two or three years of the first appropriation and use by Hines the water was used for a beneficial purpose. On the former appeal this court held that while it was clear that defendants and their predecessors had actually and continuously diverted the said amount of waters since 1883, the evidence was not sufficient to show that Hines had diverted the same for a beneficial purpose; and for that reason the judgment was reversed. At the second trial the superior court reached the same conclusions at which it arrived at the first trial, although the findings are in many respects much fuller than they were before. The evidence at the last trial is certainly to some considerable extent different from that at the first trial, and more favorable to the defendants. The reversal on the former appeal seems to have been based to a very great extent upon an expression in the testimony of the witness E.S. Hall, that Hines irrigated the hillsides of his land for the purpose "of holding the water." At the last trial, however, the testimony of Hall was a great deal fuller than at the former trial; and he explained that Hines, in addition to irrigating certain small orchards and alfalfa, irrigated the hillsides for the purpose of raising grass as feed for a large number of cattle which Hines then had. This certainly was a beneficial purpose within the meaning of the law on that subject. Of course, everyone who appropriates and diverts water does it, in a certain sense, for the purpose of holding it; and taking Hall's testimony in the most adverse sense to defendants it can be construed as nothing more than meaning that Hines perhaps intended that when his orchards should become larger and require more water he would apply part of the water employed for the irrigation of the grass to the irrigation of his orchards and other crops which he might subsequently raise on the lands, and as was said by Justice Field in Atchison v. Peterson, 20 Wall. 514: "A different use of water subsequently does not affect the right." This *Page 303 principle also applies to the subsequent use by defendants of the water for certain other purposes.
As to the question whether or not the water diverted by Hines was more than was reasonably required to irrigate his land the evidence was conflicting, and there was certainly sufficient evidence to warrant the finding of the court on that subject. It is to be noticed that the diversion was made by an open ditch and flume, a plan very different from the more modern system of pipes and reservoir. The court further found that while the creek at times furnished water enough to fill the ditch to the extent of seventy-eight and seventy-seven one-hundredths inches, yet after the commencement of the irrigation season the water in the creek rapidly diminished — in some seasons to ten, and even to five inches — and that the use of the full capacity of the ditch during the early part of the season in fully saturating the land was necessary to provide against the very small amount of water that could be obtained later. Looking, therefore, over the whole of the evidence in the case, I do not feel warranted in saying that it was insufficient to support the finding that the amount of water stated therein was diverted by the defendants and their predecessors for a lawful and beneficial purpose.
I do not think that property in ditches and water rights which have been established and held for many years should be jeopardized by attacks of as light a character as those relied on in the case at bar; and when such attacks have been held by the trial court to be unwarranted I do not think that its finding should be disturbed, and long established property rights upset, upon such showing as is made here by appellant. In my opinion the judgment should be affimed.
Rehearing denied.
McFarland, J., dissented from the order denying a rehearing. *Page 304