Southern Pac. R.R. v. Dufour

Citations

• 95 Cal. 615
• 19 L.R.A. 92
• 30 P. 783
• 1892 Cal. LEXIS 874

Syllabus

<p>Water Rights — Percolating Waters—Appropriation of Spring — Diversion. —Where a spring is fed solely hy percolating waters which seep into it from swamp or wet land surrounding the same, and not hy any running stream of water, there is no water at such spring to which the right of use can be acquired, either by statutory appropriation or by adverse user, and no action will lie in favor of one who has collected the water at the spring in a reservoir, and transmitted it by a pipe for use, against one who has diverted the water from the reservoir by means of a tunnel and ditch, constructed above the reservoir on his own land, for irrigation and domestic use.</p> <p>Id. — Subterranean Waters Part of Soil.—The law controlling the rights to subterranean waters not running through a channel or defined course is very different from that affecting the rights of surface streams. In the former case the water belongs to the soil, is part of it, is owned and possessed as the earth is, and may be used, removed, and controlled to the same extent by the owner; and no action will lie for injuries caused by cutting it off.</p> <p>Id.—Action for Diversion — Finding as to Percolation—Failure to Find as to Appropriation. — A finding, in an action for the diversion of water from plaintiff’s reservoir, that the reservoir was sustained by percolating waters alone, and that the digging of the ditch hy the defendant was for useful purposes upon his own land, and above the reservoir, is sufficient to sustain the judgment in favor of the defendant, and a failure to find upon the issue of appropriation does not constitute a reversible error.</p> <p>Findings — Control of Judgment — Failure to Find.—Where the finding of a certain fact necessarily controls the judgment in an action, the failure of the court to find upon other issues does not constitute reversible error.</p>