Hewitt v. Story

64 F. 510, 30 L.R.A. 265, 1894 U.S. App. LEXIS 2516

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 1, 1894
• Docket: No. 102
• Status: Published

Opinions

HAWLEY, District Judge

(after stating the facts). The argument of this case extended over a very wide range, embodying within its scope nearly every principle that has ever been enunciated by the courts, touching in any manner upon the question of the rights of appropriation of water from the public streams or upon private lands, — the incipiency of such rights, the manner of their acquisition, how they may be kept up and maintained, and in what manner and under what circumstances such rights may be lost. We consider the law to be well settled that the right to water flowing in the public streams may be acquired by an actual appropriation of the water for a beneficial use; that, if it is used for irrigation, the appropriator is only entitled to the amount of water that is necessary to irrigate his land by making a reasonable use. of the water; that the object had in view at the time of the appropriation and diversion of the water is to be considered in connection with the extent and right of appropriation; that if the capacity of the flume, ditch, canal, or other aqueduct, by means of which the water is conducted, is greater than is necessary to irrigate the lands of the appropriator, he will be restricted to the quantity of water needed for the purposes of irrigation, for watering his stock, and for domestic use; that the same rule applies to an appropriation made for any other use or purpose; that no person can, by virtue of his appropriation, acquire a right to any more water than is necessary for the purpose of his appropriation; that, if the water is used for the purpose of irrigating lands owned by the appropriator, the right is not confined to the amount of water-used at the time the appropriation is made. He would be entitled, not only to his needs and necessities at that time, but to such other and further amount of water, within the capacity of his ditch, as would be required for the future improvement and extended cultivation of his lands, if the right is otherwise kept up; that the intention of the appropriator, his object and purpose in making the appropriation, his acts and conduct in regard thereto, the quantity and character of land owned .by him, his necessities, ability, and surroundings, must be considered by the courts, in connection with the extent of his actual appropriation and use, in determining and defining his rights; that the mere act of commencing the construction of a ditch with the avowed intention of appropriating a given quantity of water from a stream gives no right to the water unless this purpose and intention are carried out by_ the reasonable, diligent, and effectual prosecution of the work to the final completion of the ditch, and diversion of the water to some beneficial use; that 1he rights acquired by the appropriaior must be exercised with reference to the general condition of the country and the necessities of the community, and measured in its externt by the actual needs of the particular purpose for which the appropriation is made, and not for (he purpose of obtaining a monopoly of the water, so as to prevent its use for a beneficial purpose by other persons; that the diversion of the water ripens info a valid appropriation only where it is n! ilized by the appropriate!* for a beneficial use; that the surplus 07’ waste water of a. stream may he appropriated, subject to the rights of prior appropriatosu and such an appropriaior is entitled to use all such waters; that, in controversies between prior and subsequent appro printers of water, the question generally is whether the use and enjoyment of the water for Iho purposes to which the water is applied by the prior ap)proj)riafor have been in any manner impaired by the acts of the subsequent appropriate!*. These general principies are of universal application throughout, the states and territories of the Pacific coach They have, in one form or another, been declared, upheld, and maintained by the courts by a uniform current of decisions in California.. ever since the decision in Eddy v. Simpison, 3 Cal. 249. We cite a few of the man v eases upon this subject : Kelly v. Water Co., 6 Cal. 106; Kimball v. Gearhart. 12 Cal. 28; Ortman v. Dixon. 13 Cal. 34; Weaver v. Lake Co., 15 Cal. 274; McKinney v. Smith, 21 Cal. 374; Hill v. Smith, 27 Cal. 476; Water Co. v. Powell, 34 Cal. 109; Nevada Co. v. Kidd, 37 Cal. 283; Mitchell v. Mining Co., 75 Cal. 482, 17 Pac. 246; Peregoy v. McKissick, 79 Cal. 572, 21 Pac. 967; Civ. Code Cal. § 1110 et seq. The same rules prevail in Nevada.: Lobdell v. Simpson, 2 Nev. 274; Ophir S. M. Co. v. Carpenter, 4 Nev. 534; Proctor v. Jennings, 6 Nev. 83; Barnes v. Sabron, 10 Nev. 218; Simpson v. Williams, 18 Nev. 432, 4 Pac. 1213. In Colorado: Wheeler v. Irrigation Co., 10 Colo. 583, 17 Pac. 487; Platte Water Co. v. Northern Colorado Irrigation Co., 21 Pac. 711; Coombs v. Ditch Co., 28 Pac. 966; Ft. Morgan L. & C. Co. v. South Platte Ditch Co., 30 Pac. 1033. In Idaho: Conant v. Jones, 32 Pac. 250. See, also, Atchison v. Peterson, 20 Wall. 507; Basey v. Gallagher, 20 Wall. 670; Broder v. Water Co., 101 U. S. 276; Gould, Waters, § 228 et seq.; Kinne, Irrigation, § 150 et seq. In the light of these principles and authorities, it is evident that neither appellant nor his predecessors in interest ever acquired any right by ap>-p)top>ria(ion to the extent of water now claimed by him.

But the contention of apprllees is that appellant: is not entitled to any amount whatever, under or by virtue of any appropriation that was made of the waste water flowing in the Berry Roberts ditch upon wlxich this suit was brought; that such rights as were ever acquired by such appropriation were either abandoned or lost by non user, by the statute of limitations, which is specially pleaded, and by the prescriptive rights acquired by a pjoriion of the appel-lees, aud (hat appellant is estopp>ed, by the line of conduct and action of himself and his predecessor in interest, from asserting any right oi* claim to such waters Cor the purpose of irrigating his lands. Grouping these questions together for the brevity of discussion, it may be said that, if any of them are well founded in fact, the judgment of the circuit court in dismissing the bill should be sustained. The legal principles in regard thereto are well settled. The general principles pertaining’ to an abandonment of water lights, which are applicable to this case, are clearly summed up in Black’s Pom. Water Rights, § 96, where it is stated that the previous sections—

“Recognize the fact that there may he an abandonment of the exclusive right to divert and use water acquired by, or resulting from, a prior appropriation; that such an abandonment may be made either after the prior appropriation has.become perfect and complete, and the right under it vested, or while it is yet imperfect and incomplete, and the right under it remains inchoate; and, finally, that an abandonment may be express and immediate, by the intentional act of the appropriator, or may be implied from his neglect, failure to use due diligence in the construction of his works, nonuser of them after“completion, and the like. The general doctrine concerning the effect of such an abandonment, at whatever time or in whatever manner made, is well settled. ' The prior appropriator thereby loses all of his exclusive rights to take or use the water which he had acquired, or might have acquired, by his appropriation; and he cannot, after an abandonment, reassert his original right to the same, or the same amount of water, as against a second or other subsequent claimant, who has taken proper steps to effect an appropriation thereof.”

In Water Co. v. Crary, 25 Cal. 509, tbe court said:

“The right of the first appropriator may be lost in whole, or in some limited portions, by the adverse possession of another; and when such person has had the continued, uninterrupted, and adverse enjoyment of the water course, or of some certain portion of it, during the period limited by the statute of limitations for entry upon lands, the law will presume a grant of the right so held and enjoyed by him.”

In Davis v. Gale, 32 Cal. 34, tbe court said:

“A party acquires a right to a given quantity of water by appropriation and use, and he loses that right by nonuse or abandonment. Ax>propriation, use, and nonuse are the tests of his right.”

In Smith v. Logan, 18 Nev. 154, 1 Pac. 678, tbe court said:

“The findings show that from the year 1861 until 1807, inclusive, Logan irrigated from ten to thirty-five acres of land. During the years 186S, 1800, and 1870 he made no use of the waters, and in 1871 and 1872 he irrigated but five acres. During these five years plaintiff and his predecessors in interest used the waters of the creek under their appropriations adversely to Logan. They therefore acquired the right to so much of the waters appropriated by Logan as he failed to use during the period limited by the statute of limitations.”

Section 1007 of tbe Civil Code of California provides that:

“Occupancy for the period prescribed by the Code of Civil Procedure is sufficient to bar an action for the recovery of the property, confers a title thereto, denominated a title by prescription, which is sufficient against all.”

Section 1411, under tbe title of “Water Rights,” declares that:

“rrhe appropriation must be for some useful or beneficial purpose, and when the appropriator and his successor in interest cease to use it for such a purpose, the right ceases.”

The acts and conduct of appellant and of bis predecessors in interest, relative/to tbe use of tbe Berry Roberts ditch by tbe owners of tbe South Fork Company as part of their system for -conveying tbe water which belonged to tbe South Fork ditch by right of prior appropriation, are inconsistent’ with the claim made in the Mil ot complaint. In order to avoid the force and (‘fleet of this evidence, appellant contends that the original right of appropriation, as acquired by the locators of the Berry Roberts ditch, has been preserved and maintained by the assertions of Borron and appellant at various times during their respective ownership of the land, and during the time they were exclusively using the ‘10 inches of water from the youth Fork or Timber ditch, “that they were entitled to the water embraced by the waste-water appropriation.” Such declarations by words of mouth, unaccompanied by any act or deed in vindication and maintenance of them within the period prescribed by the statute of limitations, is wholly insufficient to keep alive the rights they had previously acquired by the appropriation and use of the waste water-in the Berry Roberts ditch for the purpose of irrigation during the irrigating season. In Cox v. Clough, 70 Cal. 347, 11 Pac. 732, the court said:

■T1‘the defendants used and held the water adversely for five years next before suit was brought, the inert- disputing; their right to such possession by (ho plaintiff would not prevent the bar of the statute. * * * The seventh finding- might be literally true. — that is, defendants and their grantors might have ‘claimed the right to the exclusive use of all the waters,’ — and yet they may never have been for a moment, in the possession of such waters.”

No heed was ever given — no attention ever paid- — to the asserted claim of ownership made by Borron or appellant. The asserted claim was never recognized nor in any manner respected by any of the ap-pellees, nor by any of the parties using lite Berrv Roberts ditch for the purpose of conveying the water of the MoutliVork ditch therein. The contention of appellant that the use of the Berry Roberts ditch was consented to by appellant and his grantor, and only amounted to a temporary license, which was revocable at their will and pleasure, is not sustained by the facts. The suit is without merit, and devoid of any equity whatever. Appellant’s rights to water for the purpose of irrigation have not been impaired. Whatever rights he or his grantor ever had to the waste water during the irrigating season have been lost by- their conduct and by their nonuse of the water, and appellant is not in a position to complain of the use of the waters of the Santa Ana river by oilier parties.

To recapitulate: The locators of the Berry Roberts ditch claimed (he waste water of the river to irrigate their lands situate in section 1(5. After a few years they discovered that such waters were wholly insufficient for such purpose; that said ditch and the water rights acquired by its construction could not be relied upon to furnish water during the dry or irrigating season; that, to quote (lie language of one of the witnesses, the water was so scarce that the land was liable to “dry up and blow away.” The locators then, for the purpose of obtaining the necessary quantity of water to irrigate their lauds which were fit for cultivation, procured, by agreement and purchase, certain interests in the waters flowing in the South Fork or Timber ditch, which, with the North Fork ditch, had a prior right to the waters of the Santa Ana river, as against the ■Berry Roberts ditch. After acquiring the waters of this ditch, they and their grantees stopped using any of the water they had formerly appropriated. They succeeded in making an agreement with some other owners of the South Fork to convey the waters from said ditch over' into the channel of the Berry Roberts ditch, and prior to 1877 all the owners consented to this change of the waters, and united in its use. The owners of the South .Fork ditch took absolute, complete, and exclusive possession, use, and control of the Berry Roberts waste-water ditch, — whether rightfully or wrongfully, by consent or otherwise, need not be here determined. They appointed overseers, or “water masters,” as they are sometimes called, who issued time cards to the shareholders, and upon such cards allotted and distributed to the owners in the South Fork or Timber ditch all of the w'ater which was taken and conveyed through the Berry Roberts waste-water ditch, to the entire exclusion of any and all other waters and water rights. After a few years’ use of the water in this way, it was discovered that a great saving of water could be made by changing the course of the ditch, and taking the water out at a point further up the river, so as to avoid sandy [daces in. the river bed. This change did not give the full relief anticipated, and another change was made. From the year 1874 up to the time of the commencement of this suit, in 1887, all of the water used upon the 240 acres of land now owned by appellant, for the purpose of irrigating the same, was water represented by the 30 shares in the Timber ditch owned by appellant and his predecessors in interest, and this amount of water is sufficient to irrigate said lands. The diversion and use of this water in the way and manner stated were with the knowledge, consent, and acquiescence of Borron, the immediate predecessor of appellant, and were claimed by the other owners of the South Fork ditch to be adverse to any right or claim under the original location and appropriation of the waste water in the Berry Roberts ditch. The testimony show's that the use of the waste water in the Berry Roberts ditch was abandoned, in so far as it had, prior to 1873, been used as a source of water supply during the irrigating season; that in 1874 the Berry'Roberts ditch was taken possession of and used by the South Fork ’Ditch Company; that ever since that time the South Fork Company has had the sole and exclusive possession, use, management, and control of it; that all the water which has run through it has been the wrater actually appropriated by the South Fork Company; that during the full time of Borron’s occupancy of the land, from June, 1874, to the fall of 1881, he never questioned the right of the South Fork Company to the waters flowing in the Berry Roberts ditch, or to any part or portion thereof; that during all this time he only received w'ater to irrigate his land through the Berry Roberts ditch on his 30 shares from the South Fork Ditch Company. Substantially the same state of facts continued to exist after appellant purchased the land, in 1882. One witness, the son of appellant., testified that he protested, on behalf of appellant, against the use of the Berry Roberts waste-water ditch being taken by the South Fork Company, and that appellant occasionally used such water for irrigating his lands; but this use of the waters, it is admitted, was confined to ilie nonirrigai ing1 season in the early spring1 or late fail of the year. Col. Tolies testified that the expense of constructing what was called the “South Pork” of the Santa Ana ditch in 1877 was paid upon the basis of ihe shares in the waters of the South Fork ditch; that the original Berry Roberts ditch was thereafter used to convey the waters of the claimants in the South Fork of the Santa Ana continuously, so far as he knew, until the injunction which was issued in this proceeding; that, the South Fork or Timber ditch water filled the Berry Roberts ditch to its full capacity; that repairs were subsequently made upon the Berry Roberts or South Fork ditch, pro rata, according to the ownership of the respective parties; that Mr. Borron and appellant paid their proportionate share; that the water was apportioned pro rata on the basis of ownership of the South Fork shares; that there was no distribution of waste water, to his knowledge, to either Borron or Ball, other than during the rainy season, at which time it was not the custom to coniine distribution to the water tickets, but each party was then allowed io continuously use the water; that during the irrigating1 season no waste water was used or distributed in the Berry Roberts ditch. All tin; testimony of the several water overseers or water masters and timekeepers and others was substantially to the same effect. The waste-water rights of the Berry Roberts ditch location, having been lost by nonuser upon the part of Borron prior to the time when appellant acquired Hie land, could not he reasserted so as to acquire thereafter any right therein, except by the continued and adverse use of such rights for the period of live years, or by a new and valid appropriation of the water. In Cannon v. Stockmon. 36 a

“A party who has boon in the continued, exclusivo, adverse possession for live years is entitled to Hie benefit of the statute of limita Hons, although the live years are not next preceding the commencement of the action.”

As against the appellees who have acquired rights to the waters of Betm creek and the Sania Ana river subsequent to the location of the JBeriy Roberts ditch, Hie question here is, as staled in Hill v. Smith, supra:

“lias 1 lie plaintiff’s use ami enjoyment of the water for ihe purpose for which lie claims its use been impaired by the acts of defendant?”

This suit, it must continuously be borne in mind, is exclusively founded upon the alleged right» of appellant of water for irrigating purposes during the irrigating season, and not for any deprivation of water during- the rainy season, or the waste waters then flowing in the Sania Ana river, or through any of the many ditches or canals that have been mentioned. If is therefore necessary for appellant, in order to sustain this action as against the subsequent, appropriators, to affirmatively' show that Ms right to the waste waters of the Bern' Roberts ditch for use during the irrigating1 season has been impaired by the wrongful and unlawful acts of the appellees to his injury. This he has not done. Ho injury- has been shown. The absorption of the right to flow water* into the Berry Roberts ditch by the South Fork Company, and the use of said ditcli for the conveyance of the water were really- beneficial, instead of detrimental, to appellant. Instead of tlie uncertain and insufficient quantity of water which then flowed in the Berry Roberts ditch, he has, under the agreements and changes in the condition, as before stated, obtained a valuable right amply sufficient to supply his wants, and to enable him to cultivate, irrigate, and improve his land. It cannot, in the light of all the facts and circumstances set forth in the voluminous record on file herein, be consistently claimed that his rights have in any manner been injured or impaired by the acts of appellees. In Sharp v. Hoffman, 79 Cal. 406, 21 Pac. 846, the court said:

“The gravamen of plaintiff’s action being the deprivation of water for irrigation during the irrigating seasons in the years 1883, 1884, and 1885, whereby he suffered loss, it is incumbent on him to show by satisfactory evidence (Code Civ. JProc. § 1835) a right to the use of the waters of the creek during each of such seasons, and interference with such right and a consequent injury.”

The sáme general principles are announced by the supreme court in Atchison v. Peterson, 20 Wall. 514. Mr. Justice Field, in delivering the opinion of the court, after citing and reviewing certain cases in the courts of California and Nevada, said:

“What diminution of quantity or deterioration in quality will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of such case, considered with reference to the uses to which the waste water is applied. * * * In all controversies, therefore, between him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water to the extent of his original appropriation have been impaired by the acts of the defendant.”

Upon a review of the evidence, and of the principles of law applicable thereto, we are of opinion that the conclusion reached by the circuit court is correct. The judgment of the circuit court is affirmed, with costs.