Conkling v. Pacific Improvement Co.

Citations

• 87 Cal. 296
• 25 P. 399
• 1890 Cal. LEXIS 1136

Syllabus

<p>Riparian Rights — Diversion op Stream — Riparian Ownership — Preemption Claim — Receiver’s Receipt ■—Pleading — Evidence.— In an action by one riparian owner to enjoin another from diverting water from the stream, where the plaintiff claims the possession of his tract of laud as a pre-emptor from the government, for which he holds a receiver’s receipt, it is not necessary to allege in his complaint facts showing that the lands were subject to pre-emption, and that he was a qualified preemptor, and took the steps necessary to acquire title from the government; but it is sufficient to allege and prove the receiver’s receipt, which is prima, facie, evidence that he is rightfully in possession of the tract described therein, and entitled as a riparian owner to. protect himself against an unlawful diversion of the waters of the stream.</p> <p>Id.—Abandonment of Pre-emption Claim — Grant of Water Right — Subsequent Pre-emption. — An abandonment of a pre-emption claim defeats the right of a person claiming under 'the pre-emptor as grantee of a right to divert tbp waters of a stream flowing through the land preempted as against a subsequent pre-emptor.</p> <p>Id. — Abandonment upon Purchase — Pre-emption by Purchaser — Fraud upon Grantee of Water Right. — The fact that a subsequent pre-emptor has purchased the claim of a prior pre-emptor, and that the abandonment of the pre-emption claim was induced by the purchase, does not render the subsequent pre-emption entry of the purchaser fraudulent or illegal; nor can the grantee of a water right claiming under the first pre-emptor he considered as defrauded by the subsequent pre-emption of the land by the purchaser from his grantor.</p> <p>Id. — Limited Right of Diversion — Appropriation. — Where-the defendant has acquired by appropriation a limited right of diversion, and has lost further claim to appropriation by failure to complete the whole diversion called for by his notice of appropriation within a reasonable time, he ca