Rincon Water & Power Co. v. Anaheim Union Water Co.

Citations

• 115 F. 543
• 1902 U.S. App. LEXIS 4951

Syllabus

<p>1. Waters — Suit to Enjoin Exclusive Appropriation — Sufficiency of Bill.</p> <p>A bill by a riparian owner on a stream, against persons who, by virtue of alleged prior appropriation, claim the right to use all the waters of the stream, to enjoin such use, need not make all other riparian owners parties, nor show the quantity of water to which complainant is entitled, but is sufficient if it alleges that he owns lands irrigable from the stream.</p> <p>2. Same — Requisites to Exclusive Appropriation — Title to Sustain Suit for Diversion.</p> <p>The posting of a notice by a person desiring to appropriate water from a stream, as required by Civ. Code Cal. § 1415, ds.es not in itself constitute an appropriation, which becomes perfect only when the necessary works have been completed in accordance with the requirements of the succeeding sections, and the water thereby diverted from the stream and conducted to the place of intended use, when the claimant’s right relates back to the time of the posting of the notice. Until the appropriation has been so perfected, the claimant acquires no exclusive right to the use of the water, and cannot maintain any suit, either at law or In equity, for Its diversion by others, or to determine adverse claims.</p> <p>8. Res Judicata — Conclusiveness of Judgment — Dismissal by Consent.</p> <p>Under Code Civ. Proc. Cal. S? 581, which provides that “an action may be dismissed or a judgment of nonsuit entered * * * by either party upon the written consent of the other,” and section 582, providing that “In every case, other than those mentioned in the last section, judgment must be rendered on the merits,” a judgment of dismissal which recites that it was entered on motion of defendant’s attorneys, pursuant to a written stipulation between the parties, is not a judgment on the merits, which concludes the rights of the parties.1</p> <p>4. Same — Effect of Stipulation for Payment of Costs.</p> <p>The fact that a stipulation for the dismissal