Last Chance Water Ditch Co. v. Heilbron

Citations

• 86 Cal. 1
• 26 P. 523
• 1890 Cal. LEXIS 966

Syllabus

<p>Water Rights — Prescription— Riparian Rights — Injunction — Findings — Review of Evidence. — Where the findings in favor of a prescriptive right of an appropriator to divert water from a riparian owner, in an action to enjoin the interference of the riparian owner with the-flow of the stream into the ditch of the appropriator, are entirely unsupported by the evidence, the judgment will be reversed.</p> <p>Id. — Capacity of Ditch—Velocity of Flow — Failure to Prove: Grade. —The evidence is insufficient to show the carrying capacity of the ditch of an appropriator, where there is nothing to indicate the velocity of the flow except the width and depth of the ditch, without any evidence as to its grade.</p> <p>Id. — Findings Contrary to Complaint — Extent of Diversion—Notice of Appropriation. — When the notice of appropriation corresponds with the allegations of the complaint, a finding that the extent o£' the appropriation and diversion actually made by plaintiff’s ditch, and which the plaintiff is entitled to make, is twelve times the amount claimed in the complaint, is erroneous, as in direct conflict with and in. excess of the allegations of the complaint.</p> <p>Id. — Adverse User — Acquiescence — Finding . Contrary to Evidence. — A finding that the appropriation and diversion of a stream by plaintiff was made continuously, uninterruptedly, and adversely to the defendants and their grantors is unsustained by the evidence, when the evidence shows without conflict that there were long periods of time, during several years, when, at the low stage of water, there was no.watenin plaintiff’s ditch, and that for only two years plaintiff succeeded in getting water for a longer period by entering upon the lands of defendants, and diverting it therefrom without the knowledge or acquiescence of defendants or their grantors, and that when such diversion was ascertained to be to the prejudice of defendants, it was interfered with to such an extent as to restore the flow of t