Hargrave v. Cook

Citations

• 108 Cal. 72
• 41 P. 18
• 1895 Cal. LEXIS 824

Syllabus

<p>Riparian Rights — Ownership — Reasonable Use—Irrigation. — The right of a riparian proprietor to the waters of a stream flowing through or along his land is not a right of ownership in or to the waters, but is a usufructuary right, including a right to make a reasonable use of a reasonable quantity for irrigation, returning the surplus to the natural channel, that it may flow on in the accustomed mode to the lands below.</p> <p>Id.—Effect of Nonuser — Loss of Rights.—None of the rights of a riparian proprietor to put the water to legitimate uses can be lost by mere nonuser, but they are attached to the soil and pass with it, and may be lost by grant, condemnation, or prescription.</p> <p>Id.—Effect of Diversion Below Riparian Owner — Estoppel.—An upper riparian owner has no concern with any. use or diversion of the water after it has passed his laud, and none of his rights can be impaired thereby, and the fact that such owner never attempted to interfere with a diversion of the water below his land is immaterial, and can raise no estoppel against him.</p> <p>Id.—Prescriptive Right to Divert Water — Acquiescence—Absence of Cause of Action.—There can be no prescriptive right to divert the water of a stream, as against an upper riparian proprietor, at a point below his land by reason of his long acquiescence in such diversion . and use; and there can be no title by prescription where the acts constituting the alleged adverse use are not of such a nature as to give a cause of action in favor of the person against whom the acts are performed.</p> <p>Id.—Rights of Prior Appropriator — Change of Use.—As between appropriators of water, an appropriator who is prior in time and superior in location acquiies the ownership of water used for proper objects, with the right to change the place and purpose of use, so long as the change does not injuriously affect the rights of subsequent appropriators.</p> <p>Id.—Basement in Private Land—Change of Point of Diversion.—An appropri