Gonzales v. Arbelbide

• Court: California Court of Appeals
• Writing for the Court: WARNE
• Citation: Gonzales v. Arbelbide, 155 Cal.App.2d 721, 318 P.2d 746 (Cal. App. 1957)
• Decision Date: 04 December 1957
• Parties: Manuel E. GONZALES and Cleo D. Gonzales, his wife, Joe Angoustures and Theresa Angoustures, his wife, Antone Angoustures and Rose Angoustures, his wife, Antone Corotto and Anna Corotto, his wife, and Henry P. Simon and Marie C. Simon, his wife, Plaintiffs and Appellants, v. Bernard ARBELBIDE, Defendant and Respondent. Martin ERRECA and Mary Louise Erreca, his wife, and John Erreca and Ida May Erreca, his wife, Plaintiffs in Intervention, Respondents and Appellants, v. Manuel E. GONZALES and Cleo D. Gonzales, his wife, Joe Angoustures and Theresa Angoustures, his wife, Antone Angoustures and Rose Angoustures, his wife, Antone Corotto and Anna Corotto, his wife, and Henry P. Simon and Marie C. Simon, his wife, Defendant in Intervention, Appellants and Respondents, Bernard Arbelbide, Defendant in Intervention and Respondent. Civ. 9221.

Page 746

318 P.2d 746

155 Cal.App.2d 721

Manuel E. GONZALES and Cleo D. Gonzales, his wife, Joe Angoustures and Theresa Angoustures, his wife, Antone Angoustures and Rose Angoustures, his wife, Antone Corotto and Anna Corotto, his wife, and Henry P. Simon and Marie C. Simon, his wife, Plaintiffs and Appellants, v. Bernard ARBELBIDE, Defendant and Respondent.

Martin ERRECA and Mary Louise Erreca, his wife, and John Erreca and Ida May Erreca, his wife, Plaintiffs in Intervention, Respondents and Appellants, v. Manuel E. GONZALES and Cleo D. Gonzales, his wife, Joe Angoustures and Theresa Angoustures, his wife, Antone Angoustures and Rose Angoustures, his wife, Antone Corotto and Anna Corotto, his wife, and Henry P. Simon and Marie C. Simon, his wife, Defendant in Intervention, Appellants and Respondents, Bernard Arbelbide, Defendant in Intervention and Respondent.

Civ. 9221.

District Court of Appeal, Third District, California.

Dec. 4, 1957.

Chas. L. Gilmore, Sacramento, for plaintiffs-appellants.

George G. Murry, Gustine, for plaintiffs in intervention-appellants.

D. Oliver Germino, Los Banos, for respondent.

WARNE, Justice pro tem.

Plaintiffs and the plaintiffs in intervention separately appeal from the judgment adjudicating their rights to the use of the water of Los Banos Creek to which their lands are riparian.

In 1955 defendant Arbelbide, who owned riparian land upstream from that of the plaintiffs and that of the interveners, commenced pumping water from Los Banos Creek for irrigation purposes. Plaintiffs brought this action to enjoin defendant from so doing. They alleged that their lands were traversed by the creek and that for 50 years last past they had diverted water therefrom for irrigation under an open and notorious claim of right. The interveners, who own riparian lands immediately to the south of and adjacent to plaintiffs, contend that plaintiffs' complaint was based on a claimed prescriptive right, and that therefore the trial court was without the issues in finding that they had certain riparian rights. The interveners, by their complaint in intervention, alleged a riparian right to the use of the creek waters for irrigation and for watering stock. Los Banos Creek flows in a general easterly direction. Defendant, in his answer, alleged that he was the owner of 7,000 acres of land riparian to Los Banos Creek and that 'during a heavy rain season' he used the waters collected within the creek for irrigation and for watering stock. Plaintiffs maintain that since defendant did not describe his property, the court went without the issues in finding that 60 acres of specifically described property were riparian and in awarding defendant three-eighths of the normal flow of the creek without restricting stricting it to the 'heavy rain season.'

The plaintiffs alleged that their respective lands constituted single tracts which had been granted to their predecessors in interest by patents issued by the United States Government. The trial court so found. It also found that the Gonzales lands were traversed for a distance of 5,600 feet by the north fork of Los Banos Creek; that their land and the Angoustures, Corotto and Simon lands were traversed for a distance of one mile by said creek; and that only 60 acres of Gonzales' lands and only 40 acres of the other plaintiffs' lands were riparian to the creek, although it appears that the Gonzales lands traversed by the creek and riparian thereto exceed 60 acres, and that the lands owned by the other plaintiffs traversed by the creek and riparian thereto exceed 40 acres.

We agree with plaintiffs that their riparian rights attached to the entire tract included in the original grant if all of said lands lie within the watershed of Los Banos Creek, or if not, then that part of the lands which are within the watershed and riparian to the stream.

As stated in Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 528, 81 P.2d 533, 547, 'It is well settled that the extent of lands having riparian status is determined by 3 criteria: 1. The lands in question must be contiguous to or about on the stream, except in certain cases not now involved. * * * 2. The riparian right extends only to the smallest tract held under one title in the chain of title leading to the present owner. Boehmer v. Big Rock Irr. Dist., 117 Cal. 19, 48 P. 908. * * * 3. The land, in order to be riparian, must be within the watershed of the stream. Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 88 P. 978, 11 L.R.A.,N.S., 1062.'

All of these requirements are present in the instant case, that is, all the lands are contiguous to the stream, the lands of each of the plaintiffs are held under one title in the chain of title leading to the present owner, and the lands lie within the watersheds of the stream. 'To curtail the right by a fixation of rigid and inelastic boundaries is to destroy the right altogether, for in such case it would become a mere right or priority, or, in other words, it would be tantamount to the substitution of the doctrine of appropriation for the doctrine of riparian rights.' Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 65, 259 P. 444, 448, 56 A.L.R. 264. Further, as stated in Martin v. Western States Gas and Electric Co., 8 Cal.App.2d 226, 230, 47 P.2d 522, 524:

'* * * It is the established law of this state that the riparian rights of an owner of real property to the use and benefit thereof are an inherent part of the land, * * * Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 65, 259 P. 444, 448, 56 A.L.R. 264. In the case last cited it is said in that regard:

"We therefore here reassert the riparian right to be a vested property right inhering in and a part and parcel of the abutting lands--a right not gained by use or lost by disuse."

However, the trial court, in apportioning the waters of the creek, may properly take into consideration what part of plaintiffs' lands, if any, are not susceptible to a beneficial use of the water.

Plaintiffs in intervention claim ownership of six parcels of land and allege that said lands are traversed for a great distance by Los Banos Creek and that they have used the water for domestic and stock raising purposes. They denied on information and belief that any of the plaintiffs had any rights to the water claimed in their compliant. No specific amount of water was claimed in their complaint in intervention. They further allege that plaintiffs and the rights to the water claimed in their complaint. flow of Los Banos Creek, and that that would result in injury and damage to the lands of plaintiffs in intervention for the raising of livestock and other farm uses.

The trial court found that the lands of plaintiffs and the lands of the plaintiffs in intervention are riparian to every channel of Los Banos Creek. However, the judgment is silent as to the riparian character of the lands of plaintiffs in intervention.

The judgment, after decreeing the riparian rights of the plaintiffs and defendant to the use of the waters of Los Banos Creek, provides: 'That all of the foregoing rights to the waters of...