American Co. v. Bradford

Citations

• 27 Cal. 360

Syllabus

<p>Special Verdict op a Jury.—It is the province of the Court to determine as to what particular facts the jury shall find specially, and neither party has the right to dictate the terms of any particular question to be submitted to the jury.</p> <p>Acquisition op Eight to use Water by Prescription.—The use of water in any particular way for a period corresponding to the time limited hy statute within which an action must be commenced to determine the right to it, raises a presumption of title to the same in the person enjoying the same as against a right in any other person, which might have been but was not asserted; but in order that this presumption of title may he conclusive, the right to the use of the water must have been asserted under a claim of title with the knowledge and acquiescence of the person having a prior right, and must have been uninterrupted.</p> <p>Burden op Proving Eight to Water by Adverse Use.—The burden of proving an adverse uninterrupted use of water for five years, with the knowledge and acquiescence of the person having a prior right, is cast on the party claiming it; and if he leaves it doubtful whether the use was adverse, known to the'owner, and uninterrupted, it is not conclusive in his favor.</p> <p>¡Failure to plead ¡Five Years Adverse Use op Water.—The party claiming a right to the use of water hy five years adverse possession, must set up the same as a defense in his answer; and if he does not, he loses the right to introduce evidence in support of it, and to have the Court instruct the jury in relation to it.</p> <p>Decree ¡Enjoining Use op Water.—A decree enjoining the owners of a mining claim, situated on a creek below a dam at the head of a ditch, from diverting any water from or in any manner interfering with the waters of the creek that rise above the dam, does not prevent the owners of the mining claim from using the waters of the creek which may flow down the same after the ditch is supplied.</p>