Silver Creek & Panoche Land & Water Co. v. Hayes

Citations

• 113 Cal. 142
• 45 P. 191
• 1896 Cal. LEXIS 756

Syllabus

<p>Water Rights — Appropriation — Action for Diversion—Cross-complaint of Riparian Claimant—Insufficient Pleading.—In an action by an appropriate of a water right to enjoin diversion of the water, a cross-complaint by the defendant, claiming riparian rights in the water diverted, but which nowhere shows by statement of facts that defendant owns or holds by right any lands which are riparian to the creek from which the plaintiffs’ appropriation was made, but which merely avers that he owns three lots, and has possession and control of three other lots, without averring that he possesses or controls them by right, and states that the creek flows “ through the natural channel thereof, over and across the land of defendant, as aforesaid,” without stating that it flows across the lots owned by him, does not state a cause of action or ground of cross-complaint, and a demurrer thereto should be sustained.</p> <p>Id.—Presumption against Pleader—Possession of Riparian Lands Without Right.—It must be presumed against the pleader that he has made an allegation as strong as he could make it; and where he avers mere possession and control of certain lots, without averring or stating facts showing that he has possession of them by right, and avers that the creek in dispute flows over his lands, without averring that it flows over lands owned by him, it must be presumed that he has taken possession of such lots without right, and that the water only flows over those lots in which he has no right.</p> <p>Id.—Trespasser Without Riparian Rights.—Though a trespasser on public lands is for some purposes deemed the owner, yet when one asserts riparian rights as against an upper appropriate of water, he must show some right, inchoate or otherwise, to the land.</p> <p>Id.—Diversion of Water Through Ditch of Plaintiff — Riparian Rights—Improper Subject of Cross-complaint.—Where the injury complained of is direct interference by the defendant with the ditch of the plaintiff, so as to divert