154 Cal. 428, L. A. 1830, Burr v. Maclay Rancho Water Company
| Judge | JUDGES: In Bank. Shaw, J. Angellotti, J., Sloss, J., Henshaw, J., Lorigan, J., and Beatty, C. J., concurred. |
| Parties | JOHN BURR, Appellant, v. MACLAY RANCHO WATER COMPANY, Respondent. H. R. HILLE et al., Interveners and Respondents |
| Docket Number | L. A. 1830 |
| Citation | 98 P. 260,154 Cal. 428 |
| Court | California Supreme Court |
| Date | 16 October 1908 |
Page 428
Page 429
Rehearing Denied.
APPEAL from a judgment of the Superior Court of Los Angeles County. M. T. Allen, Judge.
COUNSEL
The facts established by the findings bring the case within the rule laid down in Katz v. Walkinshaw, 141 Cal. 116; 99 Am. St. Rep. 35, 70 P. 663, 74 P. 766; McClintock v. Hudson, 141 Cal. 281 ; 74 P. 849; Cohen v. La Canada Land and Water Co., 142 Cal. 437 ; 76 P. 47 .
It was entirely competent for the court to apportion the water between the contending parties by fixing the time during which each should be permitted to take it; and this is so whether their rights were those of riparian owners, or appropriators of, or coterminous owners of lands underlain by, percolating water. (Wiggins v. Muscupiabe L. & W. Co., 113 Cal. 182, 54 Am. St. Rep. 337, 45 P. 160; Craig v. Crafton Water Co., 141 Cal. 178, 74 P. 762; Rose v. Mesmer, 142 Cal. 329, 75 P. 905; Town of Suisun v. De Freitas, 142 Cal. 353, 75 P. 1092; Gutierrez v. Wege, 145 Cal. 731, 79 P. 449; Smith v. O'Hara, 43 Cal. 376; Salina Creek Irr. Co. v. Salina Stock Co., 7 Utah 460, 27 P. 578; Katz v. Walkinshaw, 141 Cal. 136, 99 Am. St. Rep. 35, 70 P. 663, 74 P. 766 .)
OPINION
Page 430
[98 P. 261] The plaintiff sued to enjoin the defendant company from pumping water from its wells on land adjoining that of plaintiff and transporting such water to distant lands for irrigation and use on such remote lands. The interveners own some of this remote land and claim rights to receive the water pumped by the defendant, under contracts made with defendant to furnish them with water for use on their respective tracts of land. The plaintiff has wells on his land, from which he pumps water sufficient for irrigation and other uses thereon and the injury he complains of is the lowering of the water underneath the surface, caused by the pumping of the defendant's wells, whereby his wells are drained of water. The court, upon the facts found, concluded that the plaintiff was entitled to pump from his wells, for irrigation of one tract of his land containing forty acres, designated as block 191, for six consecutive days of twenty-four hours each, in each month, a constant flow of twenty-five inches of water, miners' measure, measured under four-inch pressure, that during this period the defendant had no right to pump any water, and that, during the intervening time, the defendant has the right to pump water from its wells
Page 431
and carry the same to distant lands for sale and use thereon, to the amount of 125 miners' inches, constant flow. The interveners claim, and were declared entitled to claim, solely under the defendant. Judgment was given in accordance with these conclusions. The plaintiff appeals from the judgment upon the judgment-roll alone.
The lands of the plaintiff consist of three tracts, designated respectively as blocks 153, 190 and 191 of the Maclay Rancho Ex-Mission San Fernando, according to the recorded plat thereof, and embracing ninety acres. His wells are situated on block 191, which is practically all set out in fruit trees requiring irrigation. Until shortly before this suit was begun he had not irrigated the other tracts. The main controversy concerns the rights pertaining to block 191, but the plaintiff also claims the right to pump water from his wells on that block to irrigate the lands of the other two blocks if he should find it convenient to do so. He did for a short time irrigate 15 acres of block 190. The plaintiff claims that, upon the facts found, the court erred in limiting at all his right to take water by means of his pumps, and in adjudging to the defendant the right to take water from the adjoining lot by means of pumps, [98 P. 262] or otherwise than by the natural artesian flow of the wells, or to a greater extent than thirty inches of constant flow.
The lands of the plaintiff and a part of block 192 are all situated over the same body of underground percolating water. Concerning this body of water the finding is that underneath all the said lands, and extending to the foot of the mountains, three or four miles northerly thereof, are water-bearing strata of varying depths of sand, boulders, and coarse material, and lying over each stratum is an impervious stratum of clay or cement, extending towards, but not entirely to, said mountains; that across the said strata and running through the southerly portion of block 192, which lies immediately south of block 191, there is a dyke of material impervious to water; that the subterranean waters in the water-bearing strata are supplied by rains falling on the mountains to the north and east which, descending the surface of the mountain slopes to the base of the mountains, there find their way into the coarse material and from thence into said water-bearing strata, through which they percolate underneath the overlying
Page 432
strata of clay or cement and under the lands of plaintiff and the northern portion of block 192, "down to the said dyke, by means of which the movement of the said water is arrested, and the waters impounded, forming a subterranean basin wherein the said subterranean waters are retained." The seven wells of the defendant are all situated on the part of block 192 north of this dyke, and pierce the said water-bearing strata and subterranean basin. The water pumped therefrom is all taken away to lands lying south of the dyke, a large portion of it being several miles distant therefrom and none of it overlying the subterranean basin aforesaid. The lands of the interveners lie from two to four miles south of said dyke.
The plaintiff acquired block 191 in 1886 and ever since January, 1887, he and his family have resided thereon. In that year he began planting orchards thereon and gradually increased the area thereof until 1897. In 1896 he bored five wells along the southern line of the block and put a pumping-plant therein, from which, until the defendant began to pump on block 192 in June of the year 1902, he pumped water to the amount of twenty-five miners' inches for six full days consecutively each month, using the same to irrigate said block, and the same being necessary for that purpose. This water was taken into his pumps in the wells at a depth of twenty-four feet below the surface, and it appears from the findings that his wells and pumps, as constructed, cannot take the water at a lower depth. He has no other water supply and the water is, of course, necessary to prevent the destruction of his orchards.
In June, 1902, the defendant began pumping from its wells on block 192, over the basin aforesaid, about 125 miner's inches of water and, until the suit was begun, continued to do so, transporting the water to the distant lands above mentioned and there distributing the same for irrigation and other purposes. Prior to this excessive pumping the water in plaintiff's wells had usually stood at a general level of nine feet below the surface. The consequence of the operation of the defendant's pumps as stated was that during the remainder of the year 1902, while the pumps were so operating, the level of the water in plaintiff's wells was reduced to twenty-seven feet, and during the year 1903 to thirty feet below the surface.
Page 433
The trial occurred in May, 1904. At such times as the defendant did not operate its said pumps the water level in plaintiff's wells stood at fourteen feet below the surface in the year 1902 and at sixteen feet in the year 1903. While the defendant is operating its pumps it is impossible for the plaintiff to obtain any water from his wells by means of his pumps.
It is necessary to consider, briefly, certain contracts mentioned...
To continue reading
Request your trial