Smith v. Williams

VAN FLEET, J.

Appeal by defendant Templey from the judgment, and an order denying a new trial. The action was to enjoin defendants from diverting water from a small stream in Siskiyou county, known as “Ditch Creek, ’’ and for damages for such diversion. Plaintiff’s claim was the exclusive right by prior appropriation to the waters of the stream, to the extent of six hundred inches, measured under a four-inch pressure, “when there is that quantity therein; and, when there is not such quantity, then all of the waters” of the stream “which rise or flow therein or thereinto between the point where the present ditch of the Blue Gravel Mining Company taps said creek, and a point about two miles below, on the line of said creek, where the present lower ditch of plaintiff taps said creek.”. He averred a wrongful diversion by defendants of fifty inches of the water at a time when there was less water in the stream than the maximum quantity to which he was entitled, to his damage in the sum of $350. Defendant Templey set up the right in himself by appropriation to “about twenty inches” of the water of the stream, and denied the diversion of any water belonging to the plaintiff, or any damage. The court found that plaintiff was entitled to the exclusive use of the waters of the stream, to the extent of five hundred inches; that defendant Templey, in June, 1893, forcibly took possession of one of plaintiff’s ditches and diverted through the same about fifty inches of water, and continued such diversion up to October, and again in like manner diverting it from May to October, 1894; that during the periods of such diversion there was less than five hundred inches of water in the stream; that plaintiff was damaged in the sum of $250. Judgment was entered enjoining the diversion, and for the damages found.

The main point urged is that the findings are not sustained by the evidence. There is evidence tending substantially to establish the facts as found by the court. The finding that plaintiff “is now, and for upward of twenty years last past has been the owner and entitled to the exclusive use to the extent of five hundred inches, measured under a four-inch pressure, when there is that quantity, and when there is not such quantity, then to all of the waters flowing in Ditch creek, in Cottonwood mining district, county of Siskiyou, state of California, which rise or flow therein between the point where the present ditch of the Blue Gravel Mining Company taps said Ditch creek, and a point about two miles below, on the line of said creek, where the present lower ditch of plaintiff taps said creek, ’ ’ presents the principal point of attack. It is contended that the finding is wholly negatived by the fact, as claimed by appellant, that" prior to the bringing of the action plaintiff had conveyed away all his rights and interest in the waters of Ditch creek. This claim is based upon the fact that in December, 1888, plaintiff made a deed to one McFarland, whereby he conveyed to the latter “all of his right to the use of all the waters of Ditch creek. Said waters to be taken out at a point in said creek about one mile above the head of William H. Smith’s old ditch, and tapping said creek where the Blue Gravel Mining Company’s ditch taps said Ditch creek.” “To have and to hold, all and singular, the first right to the use of all the waters of said creek.” We think this deed was correctly construed by the court below as conveying only plaintiff’s rights to the quantity of water mentioned, taken out at the designated point, and as leaving unaffected in plaintiff his rights in the stream below that point. This intention is evident, not only from the language of the instrument, but by the practical construction put upon it by the parties to the deed. Plaintiff at the date of the conveyance owned some five ditches tapping the stream at points below the point of diversion specified in the deed to McFarland, through which he has since continued to divert waters from said creek without interference or adverse claim from Ms grantee, but with his knowledge and acquiescence. Plaintiff’s grantee has taken the water from the stream by means of the same dam which existed in the stream at the point of his diversion when the deed was made; and there has since continued to flow below said dam a considerable quantity of water, part of "which escapes past said dam, and part by seepage from the Blue Gravel Company’s ditch, and part of which comes into the streams from springs and other sources below said dam; and plaintiff’s right to the use of this water has never been questioned by his grantee, nor by anyone else other than appellant. The claim of the latter was based upon the theory that plaintiff had parted with all his rights in the stream; that all the water that flowed below the point of diversion made by plaintiff’s grantee was seepage water, which was unappropriated, and which appellant was therefore entitled to take. The court properly found against this claim.

The other points call for no particular notice. There was no material error in sustaining plaintiff’s objection to the question asked him as to the damage done him. It had been clearly answered once, and could not be made stronger by repetition. Judgment and order affirmed.

We concur: Harrison, J.; McFarland, J.; Garoutte, J.

I dissent: Beatty, C. J.