The judgment entered in the .court below decreed that the appellants herein (respondents in the court- below), are entitled to the exclusive use of three-fourths of the water running in their acequia at the mouth of Alamo canon, mentioned in the bill. It further decrees that the appellants “ are entitled to one-fourth of the water running in said acequia.”
The decree then provides the manner of dividing the water in these proportions between the respective parties, and maintaining the ditches in good order.
It closes with a restraining order enjoining “ either party from in any manner interfering with, or preventing or obstructing the free and exclusive use by the other party, or either of them, of that proportion of said water which such party is hereby decreed to be entitled to.”
Each party is required to pay his own costs.
From an examination of the evidence taken before the master we think the facts are fairly set forth in the opinion of the court below, which is as follows :
THOMAS KEENEY et al. v. JOSÉ ALBINO CARILLO et al.
District Cowri, County of Doña Ana — In Chancery.
This suit was brought to enjoin the respondents from using or. obstructing the use by the complainants of the water flowing from the mouth of the Alamo canon, situated in Doña Ana county.
Both complainants and respondents claim the water on the ground of prior possession and appropriation, for the purpose of irrigating lands.
From the testimony taken and reported by the master it seenis that the complainants first attempted to appropriate the water in question, and to some extent succeeded, in the year 1876.'
It is evident, however, that all the water actually appropriated by the complainants was taken from certain two springs at or near the mouth of the canon.
Several miles up the cañón is situated a cienega, or marsh. In 1876 the complainants dug ditches in and through this cienega to drain the same and collect and turn the water into the natural channel of the canon below, wherein it continued to run upon the surface of the ground, about twenty cubic inches in volume,.two or three miles to a place in the canon where it sank.
To prevent the sinking and wasting the water at the latter place, the complainants constructed a dam and made a ditch, conducting the water by and beyond the place of sinking and turning it again into the natural channel of the canon, wherein it continued to run to within about two miles of the said springs at the mouth of the canon, where it again sank and entirely disappeared from the surface.
The complainants commenced the work above mentioned, and prosecuted it to the extent specified, with the intention of conducting the water from the cienega at the head of the canon by channels on the surface, partly natural and in part artificial, to their lands on the plain below.
But, aside from having made a small acequia from the springs to their lands to be irrigated, they only prosecuted the work so far as to conduct the water to the place where it sank the second time. This was in 1876.
There is nothing in the testimony showing, or tending to show, any intention since that time on the part of the complainants to resume and complete the work. In the language of one of their witnesses, the work was then discontinued for want of means and time.
The question now is, how much water had the complain ants, up to this time, appropriated to some useful purpose?
The respondents “the year following, 1877, in September, commenced work, and succeeded thereby in conducting water from the cienega to the mouth of the cañón upon the surface, and thence to their lands on the plain below.
The effect of this work was to dry up the lower springs at the mouth of the canon, where the complainants had received their water, and conducted'it by an acequia to their lands. That these lower springs were fed by the water coming from the cienega above is quite evident.
But if the water from the cienega flowed under ground for any considerable distance before reaching the lower springs, it is evident that a large amount, which, percolating through the ground beneath the surface, would be absorbed, and never make its appearance at the springs.
It is also very probable that the work of the complainants in conducting the water on the surface to the place where it sank the second time would to some extent increase the flow of water from the lower springs, but what this increase was does not satisfactorily appear from the evidence.
In fact, the testimony .on both sides as to the amount of water appropriated by either complainants or respondents is so very loose and indefinite, that it is quite impossible to come to any very satisfactory conclusion as to the equity of the case on that point. My impression from the testimony, however, is that the complainants liad acquired a right by prior appropriation and use of the water flowing from the lower springs; that this amount, whatever it was, was cut off by the respondents’ acequia, which took all the water from the cienega and diverted the supply that otherwise would have reached their springs.
That the labor performed by the respondents in conducting the water to the mouth of the canon was, perhaps, more than four times as much as that performed by complainants, and was more than four times as effective for the purpose ; and that the water flowing from the mouth of the canon, in the respondents’ acequia, was at least four times as much as that previously flowing from the springs, and appropriated by the complainants.
The respondents, of course, in any event had the right by their labor to increase the flow of water from the mouth of the canon, over and above that actually appropriated by complainants from the springs and acequia, the right and title to such increase.
The complainants seem to place great reliance upon the fact that they were before the respondents in commencing work for the appropriation of this water; that they had built a house in the canon and taken possession of-the lemd at its mouth, etc.
It is true that a party may in good faith commence the necessary work to conduct to and upon his lands all, or any part of the water of a spring, stream or ciénega, and continue the work with due diligence to final completion within a reasonable time, and in that case his right to the water actually appropriated by him will relate back to the time of his commencing work, and, in the meantime, and before the expiration of what would be a reasonable time, under the circumstances, he would be protected in what he could show that he intended to appropriate by his works as against any trespasser: Weaver v. Eureka Lake Co., 15 Cal., 271; Kimbal v. Gearhart, 12 Cal., 28.
Not having the time and means requisite to a completion of the work within a reasonable time, would be no excuse, and a discontinuance on that ground for an unreasonable time would work the forfeiture of any right that might have been acquired and retained by due diligence in completing the work: Kimbal v. Gearhart, 12 Cal., 28.
In the case under consideration, the complainants, though they may have commenced work in 1876, with the intention of saving and appropriating all the water that could be made to flow from the cienega to the mouth of the canon, have failed to prosecute the necessary work therefor with due diligence to completion within a reasonable time, and, in consequence, have failed in appropriating all of such water. And in my opinion they are, under the circumstances, entitled to no more than a fourth of the water running in the respondents’ acequia.
For these reasons I have concluded to grant the decree rendered this day in this suit. Dated this, the 29th day of June, A. D. 1880.
WARREN BRISTOL,
District Judge Tim'd, District U. M.
From the decree based upon this opinion, and which has been recited above, this appeal has been taken. It is objected that complainants should have set up in their bill facts touching diverting water — by cutting off percolating water— that failing to do so, they are not entitled to the relief given to them by the decree.
The rule is well settled, that it is not necessary to plead the evidence in a bill of complaint, and we are of opinion that the bill in this case sufficiently sets up a division of the water by which the springs are now supplied through a subterranean passage.
The bill charges that after the plaintiffs, at great labor and expense, had opened said springs and cienega, and after they constructed ditches, dams and acequias, to conduct and lead said water oh to their lands, and after they, by the means set forth, acquired an exclusive right to the use of the said water for irrigation purposes, and while they were in actual and peaceable possession of said lands and of the cienega and springs, and of the water flowing from said cienega and springs, and the use thereof, that the defendants did forcibly and violently, and without the consent, and against the will of the plaintiffs, take said water and appropriate it to their own use.
The complaint furthér charges that the defendants have already diverted and are still diverting all of the said water from the ditches and acequias of the complainants into other acequias and ditches, by means whereof the flow of water in the ditches and acequias constructed by the complainants, has entirely ceased. Under these, allegations, we are of opinion that evidence was admissible, showing that the waters which flowed from the springs, at the mouth of the canon, into one of the acequias of the complainants, ceased to flow after the diversion of the waters by the defendants from the ditch built by the complainants, in the upper part of the canon.
The court below finds that to be the fact, and the pleadings and evidence justify the finding. The channel of the water was for part of the distance subterranean, but a well-defined and constant stream in a subterranean channel is protected to the owner as much as though it ran through a natural channel on the surface: Taylor v. Welch, 6 Oregon, 198. We think the evidence in this case shows that the water flowing from the springs at the mouth of the canon was furnished through as well-defined a subterranean channel as it would ordinarily be practicable to describe.
The evidence shows that the waters flowing from the complainants’ ditch in the upper part of the canon disappeared at a certain point in the natural gulch, and that it again came to the surface regularly and constantly at the springs at the mouth of the canon.
It was not a case of percolating water within the meaning of the law; the natural conformation of the soil made it quite certain that the water flowed in the direction of the springs, and the fact that the water ceased to flow from them after the defendants had diverted the water from the ditch of complainants in the upper part of the cafion, is almost-conclusive evidence that the water of the springs was furnished from the complainants’ said ditch.
. It is also to be noted that this is not the case of an adjoining owner diverting percolating water in his own soil from flowing into his neighbor’s land. Here the land of the cañón was public unoccupied land, of no value whatever, except as a natural water-course ; the complainants went on it, did work by which their supply of water was increased to them ; they were in the actual use and enjoyment of that water; that the defendants then came, and without any right whatever, went into the cañón and dug ditches, which entirely cut off the supply of water which the complainants had theretofore enjoyed.
Surely these facts warrant the interference of a court of equity.
The court below held that under 'the circumstances the complainants were entitled to the continued use and enjoyment of at least so much of the water flowing through the said canon, as they had previously enjoyed.
In that view we concur.
We think the law is clear on the subject: “A subterranean stream which supplies a spring with water, cannot be diverted by the proprietor above, for the mere purpose of appropriating the water to his own use Smith, v. Adams, 6 Paige, 435; Angell on Water Courses, sec. 112a. In this case there is no pretence of ownership by the defendants of the lands above the complainants. The law in regard to percolations is different, ex necessitate rei, for they “ spread themselves in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land:” Angelí on Water Courses, supra. It is alleged by the appellants that the answer being under oath, it must be overcome by the evidence of more than one witness, and that as to the effect. of constructing appellants’ ditch upon the springs at the mouth of the cañón, but one witness was examined. Entertaining the views- already expressed, we think that the evidence of the witness on that point was sufficiently corroborated by the other facta and circumstances in the case.
It is objected that the court erred in finding a decree in favor of James Aguallo.
From an examination of the record, it would appear that though one of the complainants in the bill is described as James Aguallo, in the other papers and proceedings he is called José Maria Aguallo.
It would appear to have been a clerical error in thus describing him by different Christian names, but as the defendants are not in any way prejudiced by it, we deem it of little importance. The question was not raised in the court below, and we will not further consider it here.
We find no error in the record presented.
The judgment should be affirmed.
All concur.