Gallaher v. Montecito Valley Water Co.

Citations

• 101 Cal. 242
• 35 P. 770
• 1894 Cal. LEXIS 1017

Syllabus

<p>Water Rights—Diversion of Stream—Prescriptive Right.—In an action by a riparian owner to restrain a water company from diverting the waters of a stream, where the water company claims a prescriptive right in persons whose rights had been condemned by it, a finding that the defendant and his predecessors in title have diverted to their own use from the stream for beneficial purposes the water so condemned, to the extent of the capacity of the boxes and pipes alleged in the complaint to have been used by the defendant for diverting the water, and have used and enjoyed the same for beneficial purposes continuously, openly, notoriously, peaceably, uninterruptedly, and adversely to the plaintiff and all other persons for the period of more than five years before the commencement of the action, is sufficient to show a good prescriptive title in defendant to the water in controversy.</p> <p>Id.—Use Upon Riparian Land.—The fact that the water so diverted was used upon riparian land, and that the court found that a portion of the waters was used by plaintiff and his predecessors in title for lawful purposes for a period of more than ten years next before the time of the diversion mentioned in the said complaint, and also since said diversions were made, is not inconsistent with adverse user and a prescriptive right to the water diverted, it appearing that the diversion was at a point on the stream above the land of the plaintiff, and that it must have been a continuous infringement upon the right of the plaintiff to the enjoyment of the water naturally flowing in the stream to the extent of the continuous diversion. .</p> <p>Id.—Change of Place of Diversion—Change of Use.—One entitled to the use of water may change the place of diversion, or the place where it is used, or the use to which it was first applied if others are not injured by such change.</p>