Anderson v. Bassman

• Citation: 140 F. 14
• Decision Date: 12 August 1905
• Docket Number: 12,857.
• Court: U.S. District Court — Northern District of California
• Parties: ANDERSON et al. v. BASSMAN et al.

140 F. 14

ANDERSON et al. v. BASSMAN et al.

No. 12,857.

United States Circuit Court, N.D. California.

August 12, 1905

Alfred Chartz, D. W. Virgin, and N. Soderberg, for complainants.

Richard S. Miner and James M. Allen, for defendants.

MORROW Circuit Judge.

This suit was commenced by the complainants, citizens of the state of Nevada, engaged in the business of farming and stock raising therein, to enjoin the diversion of the waters of the West Fork of the Carson River by the defendants, citizens of the state of California. The said West Fork of Carson River is an innavigable stream, taking its rise in the high Sierras, in Alpine county, Cal., and running northerly and easterly into Douglas county, Nev. The complainants claim rights to the waters, of which they are being deprived by the diversion of the waters from the stream by the defendants who are above them as regards the flow of the water. The defendants deny a prior or superior right to the use of said waters by the complainants, and contend that complainants are estopped to complain of the diversion of the waters at the present time.

In support of their claims the complainants allege: That they and their grantors and predecessors in interest have owned occupied, and used their said land for more than 20 years last past for the purposes of farming and stock raising; that the West Fork of the Carson River is a natural water course which flows in natural channels, and has flowed, from time immemorial, over, through, and upon the land of each of the complainants; that they and each of them are riparians on said stream, and entitled to have the waters thereof flow in the natural channels through and upon their said lands, and to make a reasonable use thereof for the irrigation of said lands and the crops growing thereon, and to have and use the said water for stock, household, and domestic purposes. They further allege that the climate where said lands are situated is arid, and the natural rainfall insufficient to produce crops, and that it is necessary during portions of each year namely, the months of March, April, May, June, July, August, September, and October, to irrigate portions of said lands in order to make them productive; that there is no source from which water can be procured for the purposes above mentioned other than the said West Fork of the Carson River; that said stream rises in the high mountain west and southwest of the lands of the complainants, receiving its principal supply from the snow which falls during the winter months; that it is a stream of variable volume and flow, sometimes supplying sufficient water for the rights, necessities, and appropriations of the complainants, and at other times not carrying a sufficient quantity to satisfy their reasonable uses and rights. It is alleged that the complainants, their grantors and predecessors, settled upon the lands described in the complaint prior to the year 1864, occupied and used the same for agricultural and grazing purposes, and ever since that time have so occupied and used the said lands; that as soon as was possible, under the laws governing such matters, the complainants and their grantors and predecessors in interest purchased said lands and acquired the title in fee simple thereto, and complainants now own said lands by fee-simple title; that prior to the year 1865, and before the defendants acquired any interest in or right to the water of said West Fork of the Carson River, or any portion thereof, the complainants, their grantors and predecessors in interest, claimed, appropriated, diverted, and used, for the purposes above mentioned, water from said stream aggregating 21,201 inches measured under a 4-inch pressure, and all the water naturally flowing in said stream during the ordinary stages of said river, and particularly during the months of March, April, May, June, July, August, September, and October of each year, which number of inches of water is necessary and required by the complainants for the proper irrigation of their lands and domestic and other necessary purposes; and that during the years 1898 and 1899, when great drought occurred, and consequent scarcity of water, the entire volume of water naturally flowing in said West Fork of Carson River was insufficient to satisfy the rights and necessities of the complainants. It is alleged that on the -- day of March, 1898, and ever since that day, the defendants have wrongfully maintained dams across said West Fork of Carson River above the dams of the complainants, and since said time have maintained ditches leading from said stream, by means of which dams and ditches they have obstructed, diverted, and wasted the waters thereof, and prevented the same from flowing in the said stream to the lands of the complainants. Twenty-four particular dams are described as among those obstructing the waters, built of rock, logs, earth, brush, straw, and manure, fouling and vitiating the water, rendering the same unfit for domestic purposes or for watering stock, each such obstruction constituting a nuisance. Complainants allege that by reason of the wrongful and unlawful acts of the defendants, and by means of the said dams and ditches, and the diversion and waste of the waters thereby, the lands of the complainants have become dry, and the crops growing thereon have been destroyed. It is further alleged that the defendants, and each of them, have used and do use in the construction of their said dams manure and other foul matter, and that by the use of such manure and foul matter the defendants, and each of them, has and now does foul and vitiate the water of said West Fork of the Carson River, thereby rendering the same unfit for use to water stock, and for the domestic and household purposes of the complainants, thereby injuring complainants and each of them; that defendants threaten to continue to so foul and vitiate the said waters; that the said dams, ditches, and other obstructions of the defendants so maintained have been and now are a nuisance. It is alleged that the defendants threaten to continue the maintenance of said dams and ditches and to divert and waste the said waters. The complainants therefore pray that such acts may be enjoined by this court; that the dams and ditches constructed by defendants be abated as a nuisance; and that complainants be decreed to be the owners of the land described, and riparians on said West Fork of the Carson River, and entitled to the use of the waters thereof in its natural channels upon their land and for household and domestic purposes.

The defendants deny generally the allegations of the complaint and by way of affirmative defense allege in their answer: That for a great many years prior to January 1, 1898, they have severally owned and been in the possession of certain lands situated on the West Fork of the Carson River, aggregating 5,669.15 acres, which they have used for farming purposes and in pasturing stock thereon; that many of the several tracts of land of the defendants are contiguous to each other, constituting one tract of farming land, and that the defendants have a common interest in the use of the water from said stream, and are and have been the successive users of said water upon their land; that the water of said stream flows in one well-defined natural channel in its passage through the county of Alpine, state of California, and through the lands of certain of the defendants, and supplies said land with water for stock, domestic, irrigation, and mechanical purposes. Eight of the defendants are specified as alleged riparians on the said stream, entitled to have the waters thereof flow in its natural channel through and upon their said riparian lands, and to make a reasonable use thereof for irrigation, watering stock, and household purposes. It is alleged that for over 20 years preceding the commencement of this action a reasonable amount of water was continuously used by the defendants and their grantors and predecessors for the above-named purposes. It is further alleged that each and all of the defendants are appropriators of the waters of said stream, and many years before the commencement of this action located, claimed, and appropriated the said waters for use upon their respective tracts of lands; that for more than five years immediately preceding the commencement of this action the defendants, their grantors and predecessors in interest, have openly, notoriously, peaceably, uninterruptedly, continuously, and under a claim of right, and adversely to the whole world, and in particular to any and all titles or rights of the complainants, and with the knowledge and acquiescence of said complainants and their predecessors, appropriated, taken possession of, and used for the purposes mentioned all of the waters of the said West Fork of the Carson River to the extent of 4,726 inches measured under a 4-inch pressure, and have diverted said amount of water to their lands through ditches constructed by them. It is alleged that the climate where these lands is situated is arid, and the rainfall insufficient to produce crops, and it is necessary during portions of each year, namely, from March to October, to irrigate said lands to make them productive; that there is no other source from which to procure water for all said purposes than said stream. It is further alleged that prior to the year 1860, and about the year 1853, before the complainants, or any of them, acquired any interest in or right to the waters of said stream, nearly all of the defendants, their grantors and predecessors, claimed, appropriated, diverted, and used about all the water naturally flowing in said stream during its ordinary stages, which is the said amount of 4,726 inches; that said amount...