Integral Quicksilver Mining Co. v. Altoona Quicksilver Mining Co.

• Decision Date: 08 June 1896
• Docket Number: 280.
• Citation: 75 F. 379
• Parties: INTEGRAL QUICKSILVER MIN. CO. v. ALTOONA QUICKSILVER MIN CO.
• Court: U.S. Court of Appeals — Ninth Circuit

75 F. 379

INTEGRAL QUICKSILVER MIN. CO. v. ALTOONA QUICKSILVER MIN CO.

No. 280.

United States Court of Appeals, Ninth Circuit.

June 8, 1896

E. W McGraw, for plaintiff in error.

C. W Cross, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

The plaintiff in error was the defendant in an action of ejectment in the court below, brought by the defendant in error, as plaintiff, to recover the possession of a water ditch known as the 'Boston Ditch,' in Trinity county Cal., alleging that the plaintiff in the action was the owner of said ditch, and had been in the possession thereof for 15 years, when, upon August 29, 1893, the defendant wrongfully ousted him therefrom. The defendant in the action claimed title to the ditch, and specially pleaded that the plaintiff had abandoned the ditch and water right; and thereafter, and about May 2, 1892, the defendant had duly located and taken possession of the same as its own, and had since held the same. The action was tried before a jury, and a verdict was rendered for the plaintiff. To review the judgment thereupon entered, the plaintiff in error sues out this writ.

The assignment of error principally relied upon is that the court erred in instructing the jury upon the subject of the alleged abandonment of the ditch by the plaintiff in error, as follows:

'To abandon such right is to relinquish possession there of without any present intention to repossess. To constitute such an abandonment, there must be a concurrence of act and intent, viz. the act of leaving the premises or property vacant, so that it may be appropriated by the next comer, and intending not to return. The mere intention to abandon, if not coupled with yielding up possession or cessation of user, is not sufficient; nor will the nonuser alone, without an intention to abandon, be held to amount to an abandonment. Abandonment is therefore a question of fact. Yielding up possession and nonuser are evidences of abandonment, and, under many circumstances, sufficient to warrant the deduction of the ultimate fact of abandonment. But it may be rebutted by evidence which shows that, notwithstanding such nonuser or want of possession, the owner did not intend to abandon it.'

It is urged that this is not a correct exposition of the law of California, as expressed in the provision in the following sections:

Section 1410 of the Civil Code of California: 'The right to the use of running water flowing in a river or stream or down a canon or ravine may be acquired by appropriation.'

Section 1411: 'The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose his right ceases.'

One of the most recent decisions of the supreme court of the state of California construing these provisions is found in Utt v. Frey, 106 Cal. 392, 39 P. 809, where the court said:

'The right which is acquired to the use of water by appropriation may be lost by abandonment. To abandon such right is to relinquish possession thereof without any present intention to repossess. To constitute such abandonment, there must be a concurrence of act and intent, viz. the act of leaving the premises or property vacant, so that it may be appropriated by the next comer, and the intention of not returning. * * * The mere intention to abandon, if not coupled with yielding up possession or a cessation of user, is not sufficient; nor will the nonuser alone, without an intention to abandon, be held to amount to an abandonment. Abandonment is a question of fact to be determined by a jury, or the court sitting as such. Yielding up possession and nonuser is evidence of abandonment, under many circumstances, sufficient to warrant the deduction of the ultimate fact of abandonment. But it may be rebutted by any evidence which shows that, notwithstanding such nonuser or want of possession, the owner did not intend to abandon it.'

It is contended by the plaintiff in error that a more recent decision, in the case of Smith v. Hawkins (Cal.) 42 P. 453, modifies the doctrine of Utt v. Frey, and so far limits the rule there announced as to hold that continuous nonuser for the period of five years, no matter what may have been the intention of the owner, operates as an abandonment of the right. In that case the court said:

'In this state, five years is the period fixed by law for the ripening of an adverse possession into a prescriptive title. Five years is also the period declared by law after which a prescriptive right depending upon enjoyment is lost for nonuser; and, for analogous reasons, we consider it to be a just and proper measure of time for the forfeiture of an appropriator's rights for a failure to use the water for a beneficial purpose. Considering the necessity of water in the industrial affairs of this state, it would be a most mischievous perpetuity which would allow one who has made an appropriation of a stream to retain indefinitely, as against other appropriators, a right to the water therein, while failing to apply the same to some useful or beneficial purpose.'

We find it unnecessary to decide whether or not, under this latest expression of the views of the supreme court of California the charge of the court to the jury was erroneous. Upon a careful inspection of the testimony which is presented in the bill of exceptions concerning the question of the abandonment of the water right by the defendant in error, we are unable to find that any witness testified to a continuous nonuser of the ditch for a period of five years before the plaintiff in error took possession. There are several witnesses upon the subject, and their testimony is more or less vague, and some of them testify to a nonuser of a portion of the ditch at different periods, and in one instance for as long a period as ten years; yet there is no witness who testifies that the whole of the ditch was unused by the defendant in error, or by its tenants or lessees, at any time continuously for five years. Under this state of the evidence, the conclusions of the supreme court of California in Smith v. Hawkins had no bearing upon the case. The only question for the jury to determine in that connection was whether or not there had been an abandonment of the ditch from the fact of...