141 Cal. 178, L. A. 1112, Craig v. Crafton Water Co.

• Judge: JUDGES: Smith, C. Gray, C., and Haynes, C., concurred. McFarland, J., Lorigan, J., Henshaw, J.
• Parties: WILLIAM CRAIG et al., Respondents, v. CRAFTON WATER COMPANY, Appellant
• Docket Number: L. A. 1112
• Citation: 141 Cal. 178,74 P. 762
• Court: California Supreme Court
• Date: 30 November 1903

Page 178

141 Cal. 178

74 P. 762

WILLIAM CRAIG et al., Respondents,

v.

CRAFTON WATER COMPANY, Appellant

L. A. No. 1112

Supreme Court of California

November 30, 1903

Page 179

Department Two

APPEAL from an order of the Superior Court of San Bernardino County denying a new trial. Frank F. Oster, Judge.

COUNSEL:

Otis & Gregg, and E. R. Annable, for Appellant.

Bicknell, Gibson & Trask, and Curtis & Curtis, for Respondents.

JUDGES: Smith, C. Gray, C., and Haynes, C., concurred. McFarland, J., Lorigan, J., Henshaw, J.

OPINION

SMITH, Judge

Page 180

[74 P. 763] This is a suit to determine the several rights of the parties to certain of the waters flowing in the Mill Creek zanja, or water-ditch, in the county of San Bernardino. The judgment was for the plaintiffs. The appeal is from an order denying the defendant's motion for new trial.

The zanja in question runs westerly from Mill Creek, past the point of diversion of the defendant's water, or, as it is called, "the Crafton intake," through the lands of the plaintiffs and others (being parts of the tract known as the Carpenter ranch), to lands in the vicinity of old San Bernardino, known as the Cottonwood Row. These lands and others form parts of the Rancho de San Bernardino, granted in the year 1842 to Lugo and others; and in the year 1876 there was a suit in the district court of San Bernardino County, between the owners, respectively, of the lands of the Carpenter ranch and those of the Cottonwood Row, in which, in June, 1876, there was entered a judgment determining the respective rights of the then owners of the waters of the zanja, which judgment was by this court affirmed. (Cave v. Crafts , 53 Cal. 135.) The plaintiffs in that suit consisted of Barton and others, owners of lands in the Cottonwood Row, with Cave, Craig, and Standford and associates, owners of Carpenter ranch lands; and the defendants, of Myron H. Crafts, who was also an owner of Carpenter ranch lands, and others whose interests are not involved here. The effect of the judgment was to determine that the owners of the Carpenter ranch lands were entitled to the use of the water in question for irrigation between the hours of three and nine o'clock p. m. of each day, and the owners of the Cottonwood lands, for the balance of the time. But it was also adjudged that these rights were subject to the rights of the owners of the Carpenter ranch lands and other upper proprietors to the use of the water for domestic purposes and for watering stock. By the decree it was also determined that the rights of the owners of the Carpenter lands, as among themselves, were as follows: that is to say, the plaintiff Cave to have the use of the water for one day of the week, and the other plaintiffs (counting Standford and associates as one), and the defendant Crafts, each for two days.

Page 181

Of the plaintiffs in the present suit, William Craig is the plaintiff Craig of the former suit, and the plaintiffs Charlotte Craig and Payne claim under him. The plaintiffs Bowers and Bean have succeeded the former to two, and the latter to one, of the six hours' use of the water per week, adjudged in the former suit to plaintiff Cave.

The defendant is a corporation, organized in or prior to the year 1886, and it is admitted that, under conveyances from owners of the Carpenter Ranch water-rights -- made in consideration of stock of the company, entitling them to the use of specified quantities of water -- it has succeeded to the right to divert the waters of the zanja, for irrigation, between the hours of three and nine o'clock p. m., except for the three hours belonging to the plaintiffs Bowers and Bean. But it is found by the court: 1. That this right is subject to the rights of the plaintiffs to use the waters of the creek for domestic purposes and for watering stock; and 2. That the plaintiffs are entitled to the water in the zanja below the Crafton intake at the hour of three o'clock p. m., or, as it is called, "the three-o'clock water," except on Mondays, and on two other days of each ten days; the former being the day on which the plaintiffs Bowers and Bean are entitled to the water, and the latter, days on which the water has habitually flowed to lower proprietors.

1. With regard to the former finding, it is clear that as to the plaintiffs Payne and William Craig it cannot be sustained. For their deeds conveyed to the defendant, without reservation or exception, the right to divert the whole of the water of the creek, so far as owned by them, between the hours of three and nine o'clock p. m. This is probably true, also, of the plaintiff Charlotte Craig; but as her deed [74 P. 764] to the defendant's grantors is not in the record, this cannot be positively asserted. As to the plaintiffs Bowers and Bean, it appears they have not parted with their right, and hence (unless they are barred by the adverse user of the defendant) they are still entitled to the use of the water for the purposes specified.

But it does not follow -- as is also found by the court -- that they are entitled to continuous flow of two inches or any other quantity in the ditch (Wiggins v. Muscupiabe etc. Co .,

Page 182

113 Cal. 189 ¹), and such a requirement, we think, would be unreasonable. The flow of water in a stream may, and when necessary should be, apportioned between the parties interested "by periods of time rather than by a division...