Wilkins v. McCue

Citations

• 46 Cal. 656

Syllabus

<p>Denial of Allegation of Complaint. —■ If the complaint, in an action to enjoin the diversion of water, alleges that the plaintiff has appropriated and used the water for more than five years, and the answer denies that the plaintiff ever at any time used or took up or appropriated the water, the . denial is sufficient.</p> <p>Idem:—If the complaint in such action avers that from the spring there ran and flowed immemorially upon the plaintiff's premises a constant and never-iailing stream of pure fresh water, and the answer denies that the water flowing from the spring ever at any time ran or flowed to or upon the plaintiff's premises, the denial is sufficient.</p> <p>New Trial.—If the testimony is conflicting a new trial will not be granted on the ground that the judgment is not warranted by the evidence.</p> <p>Imperfect Mexican Grant of Land.—If a Mexican or Spanish grant of land was imperfect or inchoate, the fee remained in the Government until the confirmation and final survey by the United Stales, if not until the issuing of the patent. Until then the grantee had only an equitable title.</p> <p>Title by Prescription. — No right by prescription can be acquired to the use of water as against the Government of the United States.</p> <p>Prescriptive Right to Use op Water. — If a grant of land by Mexico or Spain was imperfect, no prescriptive right to the use of .water flowing from it can be acquired without an adverse user for five years from the time of a final survey, or the issuing of a patent to the grantee.</p> <p>Presumption in Favor op Judgment. — If it is admitted by the plaintiff on the trial that he has title under a patent issued for a Mexican grant within less than five years before the commencement of the action, and the defendant recovers judgment, and the plaintiff claims title by prescription, it will be presumed, in support of the judgment, that the grant was an imperfect one and conveyed only an equitable title.</p>