Brewer v. Murphy

• Decision Date: 03 April 2008
• Docket Number: No. F051700.,F051700.
• Citation: 161 Cal.App.4th 928,74 Cal.Rptr.3d 436
• Parties: Lyle BREWER et al., Plaintiffs and Respondents, v. Dean MURPHY et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

74 Cal.Rptr.3d 436

161 Cal.App.4th 928

Lyle BREWER et al., Plaintiffs and Respondents, v. Dean MURPHY et al., Defendants and Appellants.

No. F051700.

Court of Appeal, Fifth District.

April 3, 2008.

Certified for Partial Publication.^*

Peter B. Brekhus & Associates; Peter B. Brekhus, Greenbrae; Law Offices of John P. Brekhus and John P. Brekhus, Fresno, for Defendants and Appellants.

Jamison & Chappel and Gregory M. Chappel for Plaintiffs and Respondents.

OPINION

DAWSON, J.

After a bench trial, the court ruled that the plaintiffs acquired prescriptive rights to take water from a spring on the defendants' property and to maintain a water line across the defendants' property for that purpose.

The defendants appeal, claiming the trial court's decision was based on legal error and its findings of fact were not supported by substantial evidence. The defendants contend that (1) post-1913 prescriptive rights to surface water are not recognized by California law, (2) substantial evidence does not support the finding that the water line was visible, open and notorious, (3) the purported visibility of the water line was not sufficient to provide constructive notice of the diversion of water from a spring unknown to defendants, and (4) plaintiffs failed to prove their use of the water and water line was hostile and adverse. We will reject each of these arguments and affirm the judgment.

Part II. of this opinion is published because it addresses a question noted and not resolved by the California Supreme Court—namely, "whether ... prescriptive rights in [surface] water may be perfected as between private parties." (People v. Shirokow (1980) 26 Cal.3d 301, 312, fn. 15, 162 Cal.Rptr. 30, 605 P.2d 859.) We conclude that California law recognizes prescriptive water rights as between private parties in the circumstances presented by this case.

In part III. of this opinion, we conclude that substantial evidence supports the trial court's findings regarding open and notorious use that was hostile and adverse to the defendants' rights. We publish the portion of part III. that explores new ground relating to the impact of recognition by the claimant of the record owner's rights.

FACTS

Plaintiffs Lyle Brewer and Elizabeth Brewer acquired property in 1979 in eastern Fresno County. At the time of their purchase, the water source for the property was a spring located on a parcel now owned by defendants Dean Murphy and Keith Klein. The parcel owned by defendants is approximately one mile to the east of plaintiffs' property. The spring water is transported to plaintiffs' property through a galvanized pipe that runs from the spring, through a culvert beneath Tollhouse Road, and across other parcels until it reaches plaintiffs' property. Mr. Brewer testified that he has used the spring and water line to supply a house on his property since 1979.

Defendant Murphy acquired the parcel containing the spring in May 1984. The parcel contains 33.79 acres of land and is located approximately one and a half miles northeast of Tollhouse, California. The parcel's western boundary is about half a mile long and fronts Tollhouse Road. The spring is located near Tollhouse Road in the parcel's southwest corner, which is steep terrain.

Defendant Murphy hunted on the mountain where his parcel is located when he was young. Despite his familiarity with the area, he did not know there was a spring on the property when he acquired it in 1984. He testified that in the many times he drove by the property on his way to and from Shaver Lake he never saw the water line. He also testified he had not seen the spring box until December 2005.

In 1989, defendant Murphy transferred an undivided one-half interest in the parcel to defendant Klein. Defendant Klein, an architect from South Lake Tahoe, looked at the property before the transaction and looked at it several times after the transaction. In 1989, he did not see the water line or the spring box, and he did not inspect the culverts running from the property under Tollhouse Road. He was not told and did not ask if there was a water source on the property.

Downhill from Tollhouse Road and defendants' parcel—that is, to the west—is a 49.22-acre parcel owned by Stephen Hagg. Mr. Hagg purchased the parcel in December 2000. The Hagg parcel occupies about three quarters of a mile of road frontage between defendants' parcel and plaintiffs' property. There are a few parcels between Hagg's property and plaintiffs'. The water line from the spring to plaintiffs' property runs across the Hagg parcel.

The culvert through which the water line runs is made of corrugated metal pipe that is two feet in diameter. The culvert is beneath Tollhouse Road and a flat turnout area on the uphill, or east, side of Tollhouse Road. The turnout area was created using fill.¹ The bottom of the culvert is about three feet lower than the surface of the turnout area. The testimony of the parties regarding the visibility of the water line to someone standing at the edge of the fill and looking down at the culvert is set forth in more detail in part III.B.3.a, post

The spring box is located in the bed of an intermittent stream. It is made of concrete and is approximately two feet square. The spring box is up a ravine or gully approximately 100 to 125 feet east of the culvert. The elevation of the spring box is about 30 feet higher that the road. The 70 to 100 feet of water line closest to the culvert is above ground, while the portion nearest the spring box is buried.²

Shortly after Mr. Hagg acquired the parcel, Mr. Brewer and he had a discussion about the water line, and Mr. Brewer told him not to connect to the water line. Nevertheless, Mr. Hagg tapped into the water line and used water for a horse trough. As a result, plaintiffs filed a lawsuit against Mr. Hagg and Olivia Hagg to stop their interference with the water line.

While the litigation with the Haggs was pending, plaintiffs filed an application to appropriate unappropriated water with the California State Water Resources Control Board (SWRCB) for the purpose of obtaining a permit to divert the water at the spring. In completing item 3.d of the application, which asks what steps have been taken to obtain right to access, plaintiffs responded "pre-existing." Item 10 of the application is titled "Existing Water Right" and asks the applicant to check one of three boxes. Box B corresponds to a statement that "Applicant claims an existing right for use of water sought by this application but agrees. NOT to exercise said right so long as a permit or license for such use remains in effect." Box C corresponds to a statement that the "water sought by this application is for additional water over that claimed under an existing right." Plaintiffs did not check any of the boxes, but a question mark was placed in the margin to the right of boxes B and C. In a table below the boxes, which is to be completed if box B or C is checked, plaintiffs indicated that the nature of their rights were "appropriative," the year of first use was 1979, the uses were year round for residential, garden and livestock, and the source was a spring.

Mr. Brewer testified that he believed he had an existing right to use the water from the spring. The defendants did not contest plaintiffs' application.

In September 2001, the SWRCB issued certificate No. R-599 to plaintiffs, which stated that the water appropriated was limited to 3,000 gallons per day and the maximum amount diverted was limited to 3.2 acre-feet per year. The certificate also stated the appropriation was subject to prior rights and "this registration shall not be construed as conferring upon the registrant the right of access to the point of diversion."

In February 2002, before the lawsuit between plaintiffs and the Haggs was finished, Mr. Hagg filed a water right complaint with the SWRCB.

In July 2002, plaintiffs obtained a judgment against the Haggs. The judgment decreed that plaintiffs were the sole owners of an easement 20 feet wide for the use, maintenance, operation and repair of the water line situated on the Haggs' parcel. The judgment enjoined the Haggs from interfering with plaintiffs' use of the easement, prohibited the Haggs from extracting water from the existing water line, and required them to remove a T-intersection that had been installed into the water line.

Approximately two months after the entry of the judgment, the SWRCB issued its report on Mr. Hagg's water right complaint. The SWRCB's September 13, 2002, report stated:

"[T]o the extent that water would reach the Hagg property, he would be able to use water pursuant to a riparian right. Likewise, to the extent that water would reach the Hardwick and Brewer properties, they would be able to use water under riparian right. During the wet months (winter and spring) there may be sufficient flow to reach all of the properties and allow each owner to divert under a riparian claim of right. However, during the dry season it is not likely that water would reach either the Brewer or Hardwick properties that are located almost a mile downstream."

The SWRCB's report concluded that (1) plaintiffs' certificate No. R-599 should not be revoked as long as plaintiffs fully complied with its requirements and (2) "direct diversion of the spring water for use on the Hagg property could be made Under ... a claim of right [as an upper riparian]."³ The staff of the SWRCB advised plaintiffs that they should get permission from defendants to access the property on which the spring was located.

As a result, in late September 2002, plaintiffs contacted defendants about obtaining permission for access to the spring. The negotiations between plaintiffs and defendants is reflected in part in a series of letters exchanged during September and October 2002. The negotiations did not lead to an agreement between plaintiffs and defendants. One point of disagreement was defendants' requirement...