De Necochea v. Curtis

Citations

• 80 Cal. 397
• 22 P. 198
• 1889 Cal. LEXIS 927

Syllabus

<p>Water Rights—Appropriation by Ditch—Non-compliance with Code — Riparian Rights op Subsequent Pre-emptioner — Act op 1866. — Under the act of Congress of July 16, 1866, a prior appropriator of a water right, who diverts the water from its natural channel by means of a completed ditch prior to the vesting of any rights in a subsequent pre-emptioner of the land over which the water would naturally flow, is protected to the extent and in the manner of such actual and completed diversion, against any riparian rights of the subsequent preemptioner, notwithstanding the failure or neglect of the prior appropriator to comply with the Civil Code as to the posting and record of a notice of appropriation of the water right.</p> <p>Id.—Construction op Civil Code—Notice op Appropriation op Water Right — Relation — Effect of Diversion — Subsequent Appropriation. —The object of the legislature in prescribing in section 1415 of the Civil Code that a notice of appropriation of a water right is to he posted and record thereof to be made, and in section 1416 that work is to he commenced for diversion of the water within sixty days after the posting of the notice, and to be diligently prosecuted thereafter, fete., is merely, as declared in section 1418, to enable the claimant to avail himself of the doctrine of relation as against an intervening appropriator. After the diversion of the water has been completed, and the same has been applied to a beneficial use, the appropriator has a perfect right to the water appropriated, against all the world except the owner of the soil, and those claiming adversely who have complied with the law. Whether a subsequent appropriator could at any time after the completion of the diversion by the prior appropriator take the water ' away from the latter by complying strictly with the code is not decided.</p>