Opinion
Department Two
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Siskiyou County and from an order denying a new trial. J. S. Beard, Judge.
COUNSEL:
The complaint is insufficient in alleging ownership of one-half of all the waters of Crystal creek, without alleging riparian ownership of the land, or stating facts showing a right to the use. (Farmers' High Line Canal etc. Co. v. Southworth, 13 Col. 111; Joseph v. Holt , 37 Cal.255.) The parol grant made by David Lowery to Fleming Lowery was of an easement, and was void. (Clanton v. Scruggs , 95 Ala. 279; Gould on Waters, sec. 300; Hayes v. Fine , 91 Cal. 391-98; Code Civ. Proc., secs. 1971, 1973; Smith v. O'Hara , 43 Cal. 371; Bradley v. Harkness , 26 Cal. 77; Lower Kings River etc. Co. v. Kings River etc. Canal Co ., 60 Cal. 408; Angell on Watercourses, secs. 168-71; Washburn on Easements, 23, 24; Gould on Waters, secs. 300, 321.) No prescriptive right was acquired by Fleming Lowery, because his use was permissive and of surplus waters. (Anaheim Water Co. v. Semi-Tropic Water Co ., 64 Cal. 185, 192; Gould on Waters, sec. 334; Alta Land etc. Co. v. Hancock , 85 Cal. 226; 20 Am. St. Rep. 207; Davis v. Gale , 32 Cal. 30; 91 Am. Dec. 554; Ball v. Kehl , 95 Cal. 606; Thomas v. England , 71 Cal. 460; Hayes v. Fine, supra .) There must be notice to the legal owner of adverse claim to the property in order to make possession adverse. (Rix v. Horstmann , 93 Cal. 502.) Adverse user must be uninterrupted. (Alta Land etc. Co. v. Hancock, supra ; Cox v. Clough , 70 Cal. 345; American Co. v. Bradford , 27 Cal. 361; Richard v. Hupp, No. 18259, filed Sept. 29, 1894.)
Maxwell, Dorsey & Soto and L. F. Coburn, for Appellant.
James F. Farraher, and Gillis & Tapscott, for Respondents.
The complaint is sufficient, and shows a right to a proportionate amount of the waters of the stream. (Harris v. Harrison , 93 Cal. 680; Farmers' High Line Canal etc. Co. v. Southworth, 13 Col. 111.) The arrangement carried out and executed between the Lowery brothers gave possessory title to one-half of the stream to each, and the statute of frauds does not apply. (Cavanaugh v. Jackson , 91 Cal. 583; Hindman v. Rizor , 21 Or. 112; Wynn v. Garland , 19 Ark. 23; 68 Am. Dec. 192.) Prior to payment in full to the state, David Lowery had only possessory title to the water, which could be abandoned by him and appropriated by his brother. (Hindman v. Rizor, supra ; Farley v. Spring Valley Min. etc. Co ., 58 Cal. 142; Davis v. Gale , 32 Cal. 26; 91 Am. Dec. 554; Black's Pomeroy on Water Rights, sec. 97.) A parol license to use the waters of a stream when executed, and improvements made upon the faith of it, becomes irrevocable. (Newcomb v. Royce, 42 Neb. 323; McBroom v. Thompson , 25 Or. 559; 42 Am. St. Rep. 806; Steinke v. Bentley , 6 Ind.App. 663; Hazelton v. Putnam, 3 Pinn. 107; 54 Am. Dec. 165; Yocco v. Conroy , 104 Cal. 468; Calanchini v. Branstetter , 84 Cal. 253; Moulton v. Harris , 94 Cal. 421.)
JUDGES: McFarland, J. Henshaw, J., and Temple, J., concurred.
OPINION
McFARLAND, Judge
This action was brought to restrain defendant from diverting more than one-half of the waters of a certain watercourse called Crystal creek. Judgment went for plaintiffs; from which judgment and from an order denying a motion for a new trial the defendant appeals. The appellant claims under one David H. Lowery, and the respondents under one Joseph F. Lowery, a brother of said David.
The facts found by the court are (briefly) these: In the year 1852 said David Lowery settled upon said Crystal creek, which runs from the west down toward the east. At that time it ran through unsurveyed United States public lands, and there was no way of getting paper title to said lands. There was what was called the "possessory law" of California, and under this David marked out a piece of land or "claim," and had it regularly recorded with the county recorder of Siskiyou county. This claim embraced one hundred and sixty acres, and Crystal creek ran from west to east, nearly through the center of the claim. He built a dwelling-house on the north side of and near the bank of the creek, and in 1853 he built a short flume and ditch to a point about fifty yards above his upper line, and therein diverted the waters of the said creek to his house for domestic use and stock, and for irrigating and dairy purposes. In the latter part of 1853 he went back to his former home in Illinois, and induced his brother Joseph to come with his family to California and settle beside him on Crystal creek, and Joseph arrived there in February, 1854. It was then and there agreed between David and Joseph that the latter should take up a claim immediately east, below and adjoining David's claim, embracing one hundred and sixty acres lying on both sides of the creek; that they should divide the two claims by a line running east and west through the centers of the claims; that Joseph should [41 P. 1023] build his dwelling-house on the said original claim of David, on the south side of the creek, and opposite to the house of David, and that they should divide the waters of Crystal creek equally between them. The brothers immediately proceeded to carry out and execute said agreement. Joseph located a claim of one hundred and sixty acres immediately below the original claim of David, and they divided the two claims by a division line running east and west through the middle of the two claims, upon which they afterward built a fence. Joseph built his house at the place designated on the upper, or original David claim, at a point on the south side of the creek opposite the house of David. They divided the waters of the creek equally by running a flume from the flume of David to the house of Joseph, and later on by dividing the waters equally in ditches taken out lower down on the stream for irrigating purposes. Joseph occupied his half of said two claims, with one-half of all the waters of the creek from February, 1854, until March, 1871. (Joseph's half conformed very closely with what was afterward designated in the United States surveys as the north half of the southeast quarter of section 17, and the north half of the southwest quarter of section 16, township 42 north, range 9 west, Mount Diablo meridian, which Joseph subsequently purchased from the state as hereinafter stated.) During that time he used half of the said waters for irrigation, domestic purposes, for stock, and for churning and dairy purposes, and the court finds: "That during all that time (from 1854 to 1871) he used the one-half of the waters of said creek under an open and notorious claim of right; that said use was hostile, continuous, uninterrupted, and exclusive, and was under a claim of right, and was well known to and acquiesced in by the parties occupying and claiming the premises now claimed and held by defendant, to wit, the premises of said David H. Lowery as herein above described, and that during the whole of said time no one in any manner interfered with the said claim or with the use as aforesaid of said waters." David occupied his half of the land until 1862, using and claiming only one-half of the water, while Joseph used and claimed the other half.
About January, 1859, Joseph located his half of said land as state school lands, and a certificate of location was issued to him by the state for said lands, and about the same time David located a part of his half as school lands and received a certificate of location, and all payments required by law were made on all of said locations on or prior to the year 1865.
In November, 1859, one Cotton obtained a money judgment in the district court against said David Lowery, and in November, 1861, by virtue of an execution issued on said judgment, the sheriff sold a tract of land, the description of which included David's half of the premises as above described, to one Churchill, and gave him a certificate of sale. No water rights were mentioned in the certificate, and the premises sold "were bounded on the south by the premises of Joseph F. Lowery, and for a considerable portion of the distance the line ran along the center of said Crystal creek." There is no evidence that any deed, or evidence of title other than said certificate, was ever given to Churchill. In the spring of 1865 Churchill executed a quitclaim deed of said premises to the appellant Green, at which time appellant went into possession, and has since remained in possession. He afterward acquired a United States patent to adjoining land not being part of said Joseph's premises.
In March, 1871, said Joseph Lowery conveyed all his said land and water rights and his said certificates of location to John Henry Smith, who then went into possession thereof, and remained in possession until his death, which occurred September 2, 1890.
It was found that about the year 1865 or 1866 said Joseph "changed the upper place of diversion by taking down said flume and running a flume up the said creek a distance of about three hundred and fifty yards above, into which he diverted said water by means of a dam and ditch and flume, and while he remained on the said place, and after him said John H. Smith, continued to divert said waters at said point and by means of said dam, ditch, and flume, and also by means of ditches further down said stream and east of the public road, up to the time of the death of said Smith, viz., September 2, 1890. That said use was the full one-half of the waters of said creek, and was continuous, open, notorious, and under claim of right, and with the full knowledge and acquiescence of defendant and his predecessors at said place. That, for three or four years before the death of John H. Smith, defendant needed some more water than he had prior thereto, by reason of having sown a large amount of alfalfa grass, and during the irrigating seasons of said years defendant at times repaired his dam and turned down to his place more than one-half of said waters; but he never claimed of said Smith the right to more than one-half of said waters, and Smith would turn said waters back and down to his place, and asserted his right to one-half of said waters, and that said diversions of said waters were for but a very short period, and were never of all of said waters of said creek flowing at said point."
Up to a short time before the commencement of this action there was just about enough of water in said creek to supply the needs of the two farms. They are similar in character and soil, and require about the same amount of water for irrigation; and both require artificial irrigation for successful cultivation.
The court finds: "That on or about the fourteenth day of June, 1891, defendant diverted all the waters of said Crystal creek from plaintiffs, and thereby deprived them of all the waters for household and domestic purposes, and for watering stock and irrigating purposes; and that he continued during all the balance of the irrigating season of [41 P. 1024] 1891 to divert at times all, and the rest of the time the larger portion of, the waters of said creek claimed by plaintiffs"; and that said diversion was to the damage of respondents in the sum of five hundred dollars. And it is further found that appellant threatens to continue said diversions, and that the continuance of such diversions would cause great and irreparable damage, etc., to respondents, who are the successors in interest of said John H. Smith, deceased. The court found that respondents are entitled to one-half of the waters of said stream, and rendered judgment for an injunction, etc., as prayed for.
The foregoing are the material facts of the case; and it is apparent that, upon these facts, the judgment is a just and equitable one. It is exactly in accordance with the intent and executed purpose of the two pioneer brothers upon whose acts the rights of the present contesting parties are based. It should stand, therefore, unless there be some inexorable legal, technical obstacle in the way of its affirmance.
It is argued that Joseph Lowery acquired no right to the waters of Crystal creek because there was no written instrument to him from David, and a parol grant of an easement is void. The general rule, no doubt, is that one who rests his claim to an easement on a verbal contract alone, unexecuted and unaccompanied by any other facts, has no rights thereto which he can enforce. But there are many cases where a mere parol license which has been executed, and where investments have been made upon the faith of it, has been held irrevocable (Gould on Waters, secs. 323, 324, and cases there cited); and, if the case at bar is to be determined alone upon the law governing parol grants, the rights of respondents, under the facts found, would be established by that law. But, really, whatever rights David Lowery had to the land or the water in 1853-54, like all rights on the public domain in early days, depended upon possession and ceased with the relinquishment of possession without intent to resume. His right as an appropriator depended upon continued use, and upon abandonment of the use of any part of the water, that part was subject to new appropriation. Therefore, when David relinquished his possession of one-half the land and water, and possession thereof was taken by Joseph, who continuously thereafter kept such possession, there was no interest left in David to be conveyed seven years afterward by execution sale. The possessory title was then in Joseph, to which had been added his state certificate for the land.
Furthermore, under any view of the law, respondents and their predecessors have, and since 1859 had, a perfect title to the water by prescription.
Appellant argues quite strenuously that some of the material findings of fact are not supported by the evidence. It would be useless to give here the evidence in detail; but, in our opinion, there is no warrant for us to hold that there is no evidence to justify the findings which are attacked.
Quite a number of questions are argued by appellant with much learning and ability, which we do not deem it necessary to discuss. The above general view of the case is all that we deem needful for its determination. It should be said, perhaps, that while appellant's criticism of the complaint, considering the latter as a work of art, has some foundation, still we think that for the purposes of a pleading it is sufficient. The original complaint would look more like the handiwork of an accomplished pleader if it contained the averment that respondents were entitled to the use of the waters involved instead of the averment that they are the "owners of" said waters; but the context clearly shows what was meant. Moreover, the amendment to the complaint seems to obviate this partially defective averment.
The judgment and order appealed from are affirmed.