Lakeside Ditch Co. v. Crane

Citations

• 80 Cal. 181
• 22 P. 76
• 1889 Cal. LEXIS 884

Syllabus

<p>Water Right—Prescription — Adverse Possession—Finding. —There can be no adverse possession of a water right, and title by prescription cannot be acquired, unless the acts constituting the adverse use are of such a nature as to give a cause of action in favor of the person against whom, those acts are performed, and to raise the presumption of a grant of an easement as the only hypothesis on which to account for his failure to complain thereof. A finding of adverse possession; if material, is not sufficient unless it shows definitely a diversion of water of which the adverse party has a right to complain.</p> <p>Id.—Review of Evidence.—As to whether the evidence in this case shows a prescriptive right in the defendant, as against a prior appropriation of water hy the plaintiff, the court is divided in opinion.</p> <p>Id. — Prior Appropriation — Power of Water Commissioners. — The water commissioners of Tulare County have no power or right to take away the interest which a prior appropriator has in the waters of a stream; and it cannot he objected hy a subsequent appropriator that the prior appropriator did not obtain permission of the water commissioners to construct a ditch or divert water.</p> <p>Id, — Diversion of Water by Third Parties — Pleading. — When there is no denial in the answer of the allegation of the complaint that the defendants have diverted water from the plaintiff, it is not error for the court to refuse proof that water was diverted by other ditches later in time of diversion than either plaintiff’s or defendants’ ditches.</p> <p>Id, •—Amendment of Answer — Sew Parties. —It seems that an answer admitting an allegation of the diversion of water hy the defendants may be amended to set up diversion of the water by third parties, and that the court might direct them to he brought in upon a proper showing, in order to obtain a complete determination of the rights of all in the waters of the stream. (Per Beatty, C. J., Thornton, J., and Works, J., co