Posachane Water Co. v. Standart

Citations

• 97 Cal. 476
• 32 P. 532
• 1893 Cal. LEXIS 573

Syllabus

<p>Water Rights — Diversion — Justification under Prior Right of One Defendant — Conveyance of Ditch and Appurtenances to Corporation. — In an action to restrain the diversion of water of a stream, where the defendants defend and justify their acts under and by virtue of a prior right in one of the defendants to a ditch and water right, it is immaterial whether the strict legal title to the ditch or water right, or both, is in the said defendant individually, or is in a corporation to which a conveyance of the ditch and appurtenances had been made.</p> <p>Id. — Pleading — Answer — Riparian Rights — Prior Appropriation — Omission in Findings — Appeal. — The failure of the trial court to find upon certain riparian rights set up in the defendants’ answer will not warrant a reversal of a judgment for the defendants, upon appeal of the plaintiffs, where the other facts found sustain the judgment of the court as to the priority of the water rights acquired by appropriation under which the defendants claim.</p> <p>Id.—Evidence — Opinion as to Grade of Ditch.—The opinion of a witness as to the grade per mile of a water-ditch is admissible, although subject to be overcome by any more accurate information which may be produced by the opposing party.</p> <p>Id.—Measurement of Capacity of Ditch — Least Carrying Capacity. — Where a ditch is intended to supply, and does supply, water for use at various points along its course, the latter part of the ditch need not be so large as the first part; but the general rule for measuring the capacity of a ditch (making due allowance for evaporation, seepage, etc.) is the amount of water that it will carry from the point of diversion to the point of use, and the point of least carrying capacity fixes the general capacity of the ditch; and this rule applies where it does not appear that the water was intended to be used along its course, before it reaches the point at which the size of the ditch was decreased, the intention apparently being