Coonradt v. Hill

Citations

• 79 Cal. 587
• 21 P. 1099
• 1889 Cal. LEXIS 778

Syllabus

<p>Water Right — Appropriation by Ditch—Adverse Possession — Statute op Limitations — Payment op Taxes.—When the water of a natural stream has been diverted by means of a dam and ditch, and has been used adversely to a lower riparian proprietor for more than five years as an appurtenance to the land of the appropriator, and no separate taxes have ever been levied or assessed upon the ditch and water plight, the defense of the statute of limitations is made out. It must be presumed that the appropriator paid whatever taxes were due from him upon the ditch and water right by reason of the enhanced value of the land to which it was appurtenant, and that the situation of the ditch and water right, and the disadvantages and benefits resulting to the riparian owner were considered by the assessor in assessing his land.</p> <p>Id. —Code Requirements as to Appropriation — Statute of Limitations —Estoppel— Evidence. —So far as defenses to an action for diversion of water are founded upon the statute of limitations and equitable estoppel, it is immaterial whether the defendant or his grantor made an appropriation of the water in compliance with the code requirements as to posting notices, etc., or not. To sustain those defenses, the actual construction of the ditch which diverted the water may be shown without preliminary proof of the posting or recording of notices. Evidence as to the convenience and necessity of the ditch to the land of the appropriator is relevant to the defense of estoppel, and to show that the water right became appurtenant to the land and passed with it to defendant.</p> <p>Id.—Water Right as an Appurtenance — Deed — Evidence. — When a ditch and water right clearly passed by a deed of land as an appurtenance thereto, the admission of evidence that the actual intention and understanding of the parties were to include them in the sale cannot be prejudicial error.</p>