In a petition for rehearing, the respondents claim that the part of the opinion of the court herein relating to the admission of the East Side Canal and Irrigation Company and others as defendants, being the part numbered 6, is contrary to the provisions of sections 1244, 1246, and 1247 of the Code of Civil Procedure. We deem it advisable to restate the position of the court more at length.
Section 1244 requires the complaint in a condemnation suit to state "the names of all owners and claimants of the property," as defendants. Section 1246 provides in substance that any person occupying, or having or claiming any interest in the property sought to be condemned, may appear, plead and defend as to his interest. Section 1247 provides that in such *Page 241 actions the court shall have power to hear and determine all adverse or conflicting claims to the property sought to be condemned.
It is obvious from this language that these provisions do not contemplate or authorize the admission of a person as a party who does not show that he has some interest in or right to the property sought to be condemned, or of a person whose statement of his right shows that he has no such interest.
All that these parties had, or claimed to have, was the right to divert from the stream of the San Joaquin River, at a point about thirty miles below plaintiff's dam and twenty miles above the Stevinson land, a flow of water equal to five hundred cubic feet per second. They claim that this right was paramount and superior to the riparian rights of the Stevinson land in the river passing that land. If this is true, then it follows, necessarily, that the right or interest of those parties constituted no part of the riparian rights of the Stevinson land in the river. Their diversion took it out of the river above, it was consumed by use in irrigation, it never again reached the river and it formed no part of the river passing the Stevinson land, to which the riparian rights attached.
The riparian right is parcel of the land to which it attaches. It is local in its nature. It enables the owner to enjoin an injurious interference with the stream, but it does so only when such interference affects the river where it passes by his land. If he cannot show this, he cannot complain of the interference. A use of the stream above, if it does not affect it where it passes his land, is no violation of his right. The intervening defendants having, as they say, a paramount right to take out the water above, such water ceases to be a part of the river which rightfully reaches the Stevinson land and its riparian rights do not extend to or include it. To say that the riparian right of the Stevinson land does include it, would be to admit that the right claimed is not paramount to the riparian right. The right of these defendants is, therefore, a right of property entirely separate, distinct from and unconnected with the riparian rights of the Stevinson Company in the river, which latter constitutes the property sought to be condemned.
The argument of these parties is based upon the idea that the plaintiff is seeking to condemn absolutely all rights to a *Page 242 part of the flow of the river equal to five hundred cubic feet per second. Hence they claim that every person having or claiming any interest in the stream is interested in the property sought to be condemned and may become a party defendant. Every other appropriator of water from the river and every owner of land riparian thereto from Firebaugh to Antioch, a distance of something over one hundred miles, could, upon this theory, insist upon becoming a party to the action. We need not determine whether this would be so or not, for this is not such a case. The property sought to be condemned is not the general or particular right of any and every person to five hundred cubic feet per second of the water of the San Joaquin River at plaintiff's dam, but is merely the riparian right attaching to the Stevinson land, so far as it may affect, or be affected by, the proposed diversion of that quantity by the plaintiff. The suit affects nobody and interests nobody except persons having some right or interest in the Stevinson land. The facts stated by these parties show that they have no such right or interest. Hence they were not proper parties to the action.
The petition for rehearing is denied.
Angellotti, J., Lorigan, J., Henshaw, J., and Melvin, J., concurred.