Patterson v. Mills

Citations

• 6 Cal. Unrep. 929
• 68 P. 1034
• 1902 Cal. LEXIS 896

Syllabus

<p>Water Eights—Priority.—Where the Defendant Alleges, in an Action Involving the priority of right to take water from a stream, that his ditches were constructed prior to those of plaintiff, at a time when the lands described in the complaint were vacant and unappropriated public lands, the failure to find on such allegation vitiates a verdict for plaintiff, as such facts would render defendant’s right paramount to the right of plaintiff.</p> <p>Appeal.—Where the Evidence Eelating to a Finding of Fact is Conflicting, the finding will not be disturbed on appeal.</p> <p>Water Eights—Priority.—The Evidence in an Action to determine the priority of right to divert the waters of a river claimed by plaintiff, who was a lower riparian owner, by adverse user, showed that plaintiff for a number of years had removed dams erected by defendant, but that the latter had rebuilt them. Plaintiff’s ditches were originally constructed under a license from a former owner of defendant’s lands, and had originally connected with the ditch of such former owner, and one of the ditches was constructed for the joint use of the parties. Held, insufficient evidence of adverse user to establish plaintiff’s prior right.</p> <p>Water Eights.—Where a License to Construct a Ditch is given on consideration that the ditch shall be for the joint use of the licensor and licensee, the right of the licensee to use the ditch can only be lost by abandonment.</p>