Peregoy v. Sellick

Citations

• 79 Cal. 568
• 21 P. 966
• 1889 Cal. LEXIS 774

Syllabus

<p>Appeal — Title op Cause. —It is the long-settled practice of this court not to transpose the names of the parties when the defendant appeals.</p> <p>Quieting Title — Water Eights—Pleading.—An action will lie to quiet title to a water right acquired by appropriation by means of a dam and ditch, and to the full flow of the stream to the head of the ditch, and a complaint alleging an appropriation by plaintiff of the water for purposes of irrigation and domestic purposes, and charging an adverse entry upon the stream and diversion of the water by defendants, and that the claim of the defendants is entirely subject to plaintiff’s claim and title, and is wholly invalid and without right as against the appropriation of said water by plaintiff, states a cause of action.</p> <p>Id.—Controversy as to Title — Time of Use of Water—Findings. — When the complaint alleges that defendants were making preparations to divert the whole of the water in controversy under a claim of right to do so, and the answer asserts a right to use forty inches of the stream for irrigation of defendant’s lands, and the issues as to title are found in favor of plaintiff, findings are not necessary upon the questions whether defendants claim water belonging to plaintiff at a time when plaintiff shows himself entitled to it, or whether defendants have actually interfered with the use of the water at the season when plaintiff was entitled to it.</p> <p>Id.—Diversion of Water—Adverse Claim.—It is not necessary, in order to maintain an action to quiet title to a water right, that there should be an actual interference with the plaintiff’s right. The assertion of an adverse claim is all that is required.</p>