Hewitt v. Story

• Citation: 51 F. 101
• Parties: HEWITT v. STORY et al.
• Decision Date: 13 June 1892
• Court: U.S. District Court — Southern District of California

51 F. 101

HEWITT v. STORY et al.

United States Circuit Court, S.D. California.

June 13, 1892

Rowell & Rowell, John A. Wright, A. W. Thompson, and Brousseau &amp Hatch, for complainant.

George E. Otis, H. C. Rolfe, Byron Waters, Curtis & Otis, and R. E Houghton, for defendants.

ROSS District Judge.

I have examined the voluminous record in this case with care, and am of the opinion that the averments of the bill as amended are not sustained by the evidence. The complainant's contention is that he is the owner, and entitled to be protected in the use, of 333 1/3 inches, measured under a 4-inch pressure, of the waters of the Santa Ana river, which he alleges were appropriated by his predecessors in interest through and by means of a ditch called the 'Berry Roberts Ditch,' the use of which he and they continuously enjoyed until the alleged wrongful interference therewith by the defendants shortly before the commencement of this suit. To review in detail the evidence, which embraces more than 2,300 pages, would serve no useful purpose; nor, in the view I take of the case, is it necessary to make any reference to a very large part of it. The case shows that prior to the appropriation under which the complainant claims two appropriations of the waters of the river had been made,-- one by means of a ditch called the 'North Fork Ditch,' tapping the river not far from where it debouches from the mountains into the San Bernardino valley; and the other, called the 'South Fork' or 'Timber' ditch, which took water from the same side of the river, (the north side,) but some distance lower down. The respective parties to this suit are not agreed, and the evidence is conflicting, in respect to the quantity of those two appropriations; but, in my view of the case, that is not a matter of importance here. The appropriation upon which the suit is based was made by Berry Roberts, Henry Suverkrup, and George A. Craw in the year 1869, and was of the 'waste water' of the river, by which, I think, from the evidence, was intended the water remaining after the North Fork and Timber ditches should be supplied. The ditch through which they appropriated this waste water tapped the river on its south side, and between the head of the North Fork ditch and that of the Timber ditch. They designated their ditch the 'Berry Roberts Ditch.' Roberts, Suverkrup, and Craw at the time occupied and claimed separate and distinct portions of section 16, township 1 S., range 3 W. of the San Bernardino meridian; Roberts claiming 160 acres, and Suverkrup and Craw, in the aggregate, 240 acres, which were subsequently acquired by the complainant, as hereinafter stated. At the time of, and for many years after, the appropriation by Roberts, Suverkrup, and Craw, there was in existence in San Bernardino county a board of water commissioners created by an act of the legislature of the state to regulate the distribution of water in accordance with the rights of the parties in interest, with authority to appoint water overseers, etc. In the records of this board referred to and relied on by both sides to this controversy, appears the following entry of date February 19, 1870:

'By request of Henry Suverkrup, Berry Roberts, and G. A. Craw, W. T. Morris and E. Kerfoot, water commissioners for San Bernardino county, California, located a water ditch to be known as the 'Berry Roberts Ditch.' The water claimed by the aforesaid parties for this ditch is the waste water of the Santa Ana river, taken out on the southeast bank of said river about four miles northeast from section sixteen, (16,) township No. 1 south, range No. 3 west, San Bernardino meridian, running thence nearly a southwest direction to the said sixteenth (16) section, and to be used for irrigating purposes, and to be equally apportioned among said parties on the land of the said sixteenth (16) section owned by said parties; and also Berry Roberts was appointed overseer for the aforesaid ditch for the present year.

'Done on the 19th day of February, A.D. 1870.

'W T. Morris, 'E. KERFOOT.' Under this appointment Roberts took charge of the Berry Roberts ditch as water overseer, and through and by means of it Roberts, Suverkrup, and Craw conducted the waste water of the river so appropriated to their respective tracts of land in section 16 for irrigation and domestic uses. They had a few trees planted, a small garden, and a few acres in potatoes and corn, not exceeding in the aggregate 40 or 50 acres; and, in the aggregate, they cultivated in grain some 50 or 60 acres. They also permitted one or more of their neighbors to participate in the use of the water, conditioned upon their contributing to keep the ditch in repair. Roberts conveyed his interest in the 160 acres of land claimed by him, together with his interest in the Berry Roberts ditch and in the waste water, to one Ball in 1870, and Ball thereupon succeeded Roberts as overseer of the Berry Roberts ditch. Craw, whose tract of land contained 160 acres, conveyed his interest in it to Suverkrup in 1872. He testified (subject to objections on the part of the defendants as to the competency of the testimony) that he also sold to Suverkrup his interest in the Berry...