Yankee Jim's Union Water Co. v. Crary

Citations

• 25 Cal. 504
• 1864 Cal. LEXIS 60

Syllabus

<p>Adverse Possession of Water Right.—The right to the use of a watercourse in the public mineral lands, and the right to divert and use the water taken therefrom, may he held, granted, abandoned, or lost, by the same means as a right of the same character issuing out of lands to which a private title exists. The right of the first appropriator may be lost by the adverse possession of another; and when such person has had the continued, uninterrupted, and adverse enjoyment of the water, or of some certain portion of it, during the period limited by the Statute of Limitations for entry upon lands, the law will presume a grant of the right so held and enjoyed by Mm.</p> <p>Evidence in Actions for Diverting Water.—In an action for the wrongful diversion of water, where the answer sets up more than five years continuous adverse possession in the defendant, if the plaintiff before resting introduces evidence 1 tending to show his possession during the five years, and the defendant then introduces evidence to sustain the answer, the plaintiff, in rebuttal, may introduce evidence to show that defendant's possession had not been continuous, or uninterrupted, or adverse, but he cannot claim as a right to introduce evidence to prove the same facts that were proved in his opening.</p> <p>Error in Admitting Testimony Cured by Instructions.—If the Court errs in the admission of testimony during the trial, but afterwards instructs the jury to disregard such testimony, the error is not sufficient to entitle the party objecting to the testimony to a new trial.</p> <p>Presumption of Grant to Water.—In an action for the wrongful diversion of water, if the jury are satisfied from the evidence that the defendants have been in the continued, adverse, uninterrupted possession, use, and enjoyment of the water in dispute for five years preceding the commencement of the action, they are justified in presuming a grant to the defendants.</p> <p>Diversión of Water—If A. is the owner of a ditch