Smith v. Hawkins

Citations

• 120 Cal. 86
• 52 P. 139
• 1898 Cal. LEXIS 716

Syllabus

<p>Water Eights—Appropriation — Loss of Eight by Nonusbr for Five Years.—The failure of one who has appropriated water to devote it to any beneficial use for the period of five years next before the commencement of an action against a subsequent appropriator, operated, under section 1411 of the Civil Code, to work a forfeiture of plaintiff’s rights by nonuser, as against the defendant.</p> <p>Id.—Partial Loss of Eight—Capacity of Ditch Immaterial.—An appropriation of water by means of a ditch is not measured by the capacity of the ditch, but is limited to such quantity, not exceeding its capacity, as the appropriator may put to a useful purpose; and no matter how great in extent the original quantity appropriated may have been, any amount less than the whole amount appropriated, which has not been devoted to a beneficial use at some time within five years, is lost and forfeited as against a subsequent appropriator thereof.</p> <p>Id.—Findings—Insufficient Support of Judgment—Failure to Find Extent of Bbni ficial User—Judgment for Capacity of Ditch.—Where the court found that the defendant, a subsequent appropriator, had continuously appropriated a certain quantity of water from the stream for thirteen years last past, and also found the capacity of plaintiffs’ ditch, and that plaintiffs had diverted the water for a useful purpose within five years before the commencement of the action, but the maximum quantity of water so diverted and used at any time . during said period was not determined, the findings are insufficient to support a judgment awarding to plaintiffs a superior right in the stream to the extent of the capacity of their ditch.</p>