98 Cal. 332, 18075, Jacob v. Lorenz

Docket Nº:18075
Citation:98 Cal. 332, 33 P. 119
Opinion Judge:HAYNES, Judge
Party Name:HENRY JACOB, Respondent, v. HENRY LORENZ et al., Appellants
Attorney:James W. Bartlett, for Appellants. John W. Turner, for Respondent.
Judge Panel:JUDGES: Haynes, C. Belcher, C., and Vanclief, C., concurred. Garoutte, J., Harrison, J., McFarland, J.
Case Date:May 18, 1893
Court:Supreme Court of California
 
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Page 332

98 Cal. 332

33 P. 119

HENRY JACOB, Respondent,

v.

HENRY LORENZ et al., Appellants

No. 18075

Supreme Court of California

May 18, 1893

Page 333

Department One

Appeal from a judgment of the Superior Court of Trinity County, and from an order denying a new trial.

COUNSEL:

James W. Bartlett, for Appellants.

John W. Turner, for Respondent.

JUDGES: Haynes, C. Belcher, C., and Vanclief, C., concurred. Garoutte, J., Harrison, J., McFarland, J.

OPINION

HAYNES, Judge

Page 334

[33 P. 120] This action was originally brought by the plaintiff to enjoin the defendants, who are owners of the Mammoth placer mine, and who are working the same by hydraulic process, from injuring or washing away a certain water ditch known as the east branch of the Jacob ditch, owned by plaintiff, and which crosses defendants' mine.

Several ditches, among them the Jacob ditch and the Butcher ditch, take water from Connor's Creek. Plaintiff acquired the ownership of the Butcher ditch in 1863, and commenced the construction of the Jacob ditch in 1868, and completed the east branch and turned water into it in October, 1870. This east branch of the Jacob ditch connects with and conveys water into the lower part of the Butcher ditch and to a reservoir used by plaintiff in working a mine. The amended complaint alleged the ownership and right to the twenty inches of the "first flow" of the waters of Connor's Creek through the Jacob ditch and branches, that a portion of this water had been used through this ditch since 1868, and later all of it, and that the ditches above named "united formed one complete system."

Page 335

It was further alleged that at the time said east branch was constructed the ground over which it passed was vacant and unappropriated mineral land of the United States, but which was afterwards, on December 31, 1877, patented to defendants; that the patent reserved the water rights and ditches mentioned in section 2339 of the United States Revised Statutes; that plaintiff had a prior vested right of way for the same; that defendants denied his title to said ditch and water, and had washed away the earth to within eighty feet of his ditch, and threatened and intended to wash away and destroy the same, and prayed for a perpetual injunction.

Defendants' demurrer to this complaint was overruled, and this ruling is assigned as error. But one cause of action is stated in the complaint. The Butcher ditch was doubtless mentioned because of its relation to the east branch of the Jacob ditch. Some, if not all of these allegations, were not material, but surplusage does not vitiate. As to a further ground of demurrer appellants contend that sufficient facts are not stated because the complaint does not allege "that plaintiff owned a vested and accrued water right appurtenant to the Jacob ditch, or that he did in 1868 or in 1870."

It is not necessary to use the language of the act of Congress. Facts are alleged which show that he had such vested right; whether this right must be appurtenant to a particular ditch will be noticed hereafter.

As to the date at which the right must have accrued, defendants contend that the right must have vested and accrued prior to the passage of the act of Congress of July 25, 1866, and that only water and ditch rights which had accrued and vested prior to that act are protected by sections 2339 and 2340 of the Revised Statutes.

Such contention cannot be sustained. Section 9 of the act of July, 1866 (14 U.S. Stats. 253), after acknowledging and confirming water and ditch rights then existing, contains the following proviso: "Provided, however, that whenever after the passage of this act any person or persons shall in the construction of any ditch or canal injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury

Page 336

or damage." Any doubt which may have existed as to the meaning of the act of 1866 was removed by the amendatory act of July 9, 1870 (16 U.S. Stats., sec. 17, p. 218), which provided that "all patents granted, or pre-emptions or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this is amendatory." That Jennison v. Kirk , 98 U.S. 453, [33 P. 121] cited by appellants, does not sustain their contention is apparent from the fact that the ditch there in controversy was constructed in 1873, and its validity was not questioned except as to a conflict with an older ditch. The language used in the opinion in Broder v. Water Co ., 101 U.S. 274, also cited by appellants, would appear to support their contention, but the question here raised was not before the court. The ditch there in question was completed in 1853, and the opinion must be read in the light of that fact. The case of Van Sickle v. Haines, 7 Nev. 249, also arose before the act of 1866, and was not applicable to the question here. Lewis, C. J., who wrote the opinion in Van Sickle v. Haines, also wrote the opinion in Hobart v. Ford, 6 Nev. 77; in construing section 9 of the act of 1866, the court said: "In its adoption there appears to have been three distinct objects in view: 1. The confirmation of all existing water rights. 2. To grant the right of way over the public land to all who may desire to construct flumes or canals for mining or manufacturing purposes; and 3. To authorize the recovery of damages by settlers on such land," etc. (See also Barnes v. Sabron, 10 Nev. 217.)

The demurrer to the amended complaint was properly overruled.

Defendants then answered denying specifically the allegations of the complaint, and for a further and separate answer alleged: "That since the commencement of this action the defendants, in the ordinary course and manner of working the Mammoth placer mine by the hydraulic process, have mined and washed away about seventy feet of the ditch described in the complaint as the east branch of the Jacob ditch; that it is destroyed and cannot be specifically replaced."

Page 337

Plaintiff thereupon, by leave of court, filed a supplemental complaint, alleging the facts stated in defendants' additional answer above quoted, and further alleging that it was done wrongfully and maliciously and with intent to destroy said ditch, and that he was thereby damaged in the sum of five thousand dollars.

Defendants moved to strike out the supplemental complaint and also demurred thereto. An amended...

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