Peake v. Harris , 48 Cal. App. 363 ( 1920 )

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 26, 1920, and the following opinion then rendered thereon:

THE COURT. — The petition for rehearing in this court is denied. But in denying the same we think it is necessary to make a statement of the reasons therefor.

The plaintiff's predecessors and the defendants' predecessors in interest each owned a quarter-section of land having a common north and south boundary, plaintiff's lying east and defendants' west of the common line. The stream in controversy ran through both tracts from the west toward the east, first entering the defendants' land and then through the plaintiff's land. The result is that the plaintiff is the lower riparian proprietor and the defendants the upper riparian proprietors.

It appears from the findings that the plaintiff and his predecessors have diverted water from the stream and used it on said quarter-section of land ever since the year 1860, claiming the right under an alleged appropriation and use, and that the defendants and their predecessors in interest have used the waters of the stream on their western quarter-section ever since the year 1876. The court below found that by virtue of such use on the lower riparian tract the plaintiff had acquired a right thereto as against the claims of the defendants as owner of the upper tract to the extent of the plaintiff's continuous use; that this use did not include the entire time; that the stream was so small that a division of the rights could better be made by rotation of the use than by a division of the volume of the waters. Thereupon the court found, among other things, that from October 1st to May 1st of each year plaintiff and defendants were each entitled to one-half the natural flow of the stream, but that from May 1st to October 1st of each year the plaintiff was entitled to have the entire flow for eight days and the defendants the entire flow for the next four days and so on alternately during said irrigating season. In effect this was a finding that the plaintiff by his adverse use on the lower riparian tract had acquired, as against the defendants owning the upper riparian tract, the right to two-thirds of the waters of the stream.

There is nothing in the findings or in the complaint to show that the plaintiff or his predecessors in interest had ever actually claimed that their use was adverse to the riparian rights of the defendants' predecessors on the upper tract, or that such use by the plaintiff on the tract below in any way interfered with the use of the waters of the stream on the tract above, or that the natural conditions entitled plaintiff to more than his proportion measured by the area of his tract. The court below and the district court of appeal, as well as the respective parties, appear to have misapprehended the law with respect to the reciprocal rights of upper and lower riparian owners in the waters of a common stream. [7] The decisions are unanimous to the effect that each of such owners has the right to the reasonable use of the stream on his own land and that this right is neither gained by use nor lost by disuse, but constitutes a part and parcel of the land and of the ownership thereof. (Hargrave v. Cook, 108 Cal. 77, [30 L.R.A. 390, 41 P. 18]; Duckworth v. Watsonville etc. Co.,150 Cal. 520, [89 P. 338]; Huffner v. Sawday, 153 Cal. 91, [94 P. 424].) [8] It is also settled that the lower riparian owner, the plaintiff being such owner, cannot complain of the use by an upper riparian owner except by showing that the upper owner uses an unreasonable quantity of the stream, having regard to the needs of the lower owner, and, consequently, that the lower owner cannot enjoin the use by an upper owner unless he alleges such unreasonable use to his injury. (Swift v. Goodrich, 70 Cal. 105, [11 P. 561]; Hargrave v. Cook, supra; Heilbron v. Landetc. Co., 80 Cal. 193, [22 P. 62]; Anaheim W. Co. v.Semi-Tropic Co., 64 Cal. 192, [30 P. 623].) [9] It follows from these principles that the lower owner gained nothing as against the upper owner by the mere use of the water upon his own land, since, as the above decisions hold, the upper owner was not concerned with the use made of the water after it passed beyond his boundaries. The plaintiff and his predecessors in interest could not gain any right against the defendants by the long-continued use of the water upon the lower tract of land.

If the defendants were complaining of the judgment we would be bound to hold that it was erroneous against them, so far as the findings purport to uphold it. But in this case the defendants are not appealing. The plaintiff contends that he has the right to more waters of the stream than is given him by the judgment and upon that ground he took the appeal. The district court, having affirmed the judgment, he now asks for a rehearing at the hands of this court. From what we have said, it will be seen that the plaintiff has already secured a judgment for a larger amount than he is entitled to, consequently he is not entitled to another hearing of this case.

Shaw, J., Olney, J., Wilbur, J., Lennon, J., and Lawlor, J., concurred.