Utt v. Frey

Citations

• 106 Cal. 392
• 39 P. 807
• 1895 Cal. LEXIS 619

Syllabus

<p>Water Rights—Possession or Ditch in Land or Another— Conveyance by Possessor.—Where a settler upon public lands of the United States constructed a ditch to convey the waters of a creek to his house and lands for domestic purposes and irrigation, and upon his death his son in law, without transfer of any rights from his heirs, took possession of the property and utilized the ditch for the appropriation of the water of the creek for domestic purposes and for irrigation of the land, the son in law of the deceased owner thereby acquires a right by his possession of the land and ditch which he can convey to a third party, and which, if not lost by abandonment, is prior in time and superior in right to the claim of a subsequent riparian proprietor whose right did not vest until after the transfer of the ditch and water right by the possessor thereof.</p> <p>Id.—Date or Possessory Right.—Where there is no transfer of the rights of a prior possessor or owner of land and a water right appurtenant thereto, a right acquired by subsequent peaceable possession of the land and appropriation of the water for useful purposes, dates from the date of the possession and appropriation. '</p> <p>Id.—Abandonment or Water Right.—To abandon a water right acquired by the use of water by appropriation there must be a concurrence of the act of leaving it so that it can be appropriated by the next comer, without the intention to repossess it; and the mere intention to abandon it, not coupled with a yielding up of possession or cessation of user,' is not sufficient, nor will nonuser alone, without intention to abandon, be held to amount to an abandonment.</p> <p>Id.—Water Right—When not Abandoned. —The facts that after the conveyance of a ditch and water right to the plaintiff but little water was used from the ditch for irrigation, and that the ditch became so obstructed that it would conduct but a small quantity of water, do not establish an abandonment of the ditch and water right, where