South Santa Clara Val. Water Conservation Dist. v. Johnson

• Decision Date: 21 December 1964
• Citation: South Santa Clara Val. Water Conservation Dist. v. Johnson, 41 Cal.Rptr. 846, 231 Cal.App.2d 388 (Cal. App. 1964)
• Court: California Court of Appeals
• Parties: SOUTH SANTA CALRA VALLEY WATER CONSERVATION DISTRICT, Plaintiff and Appellant, v. Ora JOHNSON, H. Martell Blair, Marian Adele Blair, and Ora Johnson as Executrix of the Will of Ralph W. Johnson, Deceased, Defendants and Respondents. Civ. 21494.

Page 846

41 Cal.Rptr. 846

231 Cal.App.2d 388

SOUTH SANTA CALRA VALLEY WATER CONSERVATION DISTRICT, Plaintiff and Appellant, v. Ora JOHNSON, H. Martell Blair, Marian Adele Blair, and Ora Johnson as Executrix of the Will of Ralph W. Johnson, Deceased, Defendants and Respondents.

Civ. 21494.

District Court of Appeal, First District, Division 1, California.

Dec. 21, 1964.

Rehearing Denied Jan. 11, 1965.

Sydney S. Johnson, Gilroy, for appellant.

Charles E. Luckhardt and Rankin, Oneal, Luckhardt, Center, Longinotti & Ingram, San Jose, for respondents.

MOLINARI, Justice.

Plaintiff water district brought this action to enjoin defendants from impounding water in a dam and reservoir upon their property, thereby withholding from plaintiff water which would otherwise flow into plaintiff's Uvas Dam. The trial court found that the water collected by defendants' reservoir was surface drainage, or 'storm' or 'vagrant' waters and was not received through any watercourse. Based on this finding, judgment was entered in favor of defendants, giving them the right to impound such water on their property.

On this appeal plaintiff raises several issues, the major one being that the evidence was insufficient to sustain the findings of the court. We shall discuss the facts pertinent to each issue in our separate discussion of the points raised on this appeal. Preliminarily, however, we set out the following facts: Plaintiff, South Santa Clara Valley Water Conservation District, was formed for the purpose of conserving surplus waters. In order to accomplish this purpose, it constructed a dam of 10,000 acre feet capacity on the Uvas Creek. In times of heavy rainfall, the Uvas reservoir impounds surplus waters. This water is then released at certain intervals and allowed to percolate into the underground stratas so that it is available in the valley south of the Uvas Dam. Defendants own approximately 1,000 acres of cattle-raising land northwest of plaintiff's district. In order to water the cattle, defendants' predecessor in interest had constructed, in the year 1942, a 'stock dam' on the land. In 1959 defendants repaired and enlarged the dam, increasing its capacity to approximately 43 acre feet.

Sufficiency of the Evidence

The theory on which plaintiff based its right to an injunction was that defendants, as riparian owners, are entitled to use the water which flows on their property to the extent that such use is for the beneficial enjoyment of defendants' property, and that the quantity of water which defendants' dam impounds is in excess of that allowable use.

In response to these allegations, defendants set up several defenses. The one which was successful in the trial court was based on the theory that defendants' right to impound water was not governed by the law applicable to riparian owners; that defendants were not riparian owners, there being no 'watercourse' on defendants' property; rather that defendants' dam and reservoir collected only vagrant and flood waters, the use of which according to existing law can be unrestricted.

Thus, the crucial issue in the trial court was whether defendants' dam was situated on a 'watercourse.' The trial court having answered this question in the negative, this appeal turns on whether there is sufficient evidence to justify such a conclusion. Before reviewing the evidence submitted on this issue and the law which is applicable to it, we state the pertinent rules governing the scope of appellate review of an appeal which attacks the sufficiency of the evidence to support the judgment. As stated in Primm v. Primm, 46 Cal.2d 690, 693, 299 P.2d 231, 233: 'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' And again with regard to the specific issue at bench: 'The question of the existence of a watercourse is often one of fact to be determined by a jury or the court. If the evidence in that regard is conflicting, the determination of the trial court will not be disturbed on appeal.' (Costello v. Bowen, 80 Cal.App.2d 621, 627, 182 P.2d 615, 619; County of Sierra v. County of Nevada, 155 Cal. 1, 8, 99 P. 371.)

Turning, then, to the law of water, we find a variety of definitions as to what constitutes a watercourse. In Los Angeles Cemetery Ass'n v. City of Los Angeles, 103 Cal. 461, 464-465, 37 P. 375, 376, we find this definition: 'There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed, sides, or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire face of a tract of land, occasioned by unusual freshets or other extraordinary causes. It does not include the water flowing in the hollows or ravines in land, which is the mere surface water from rain or melting snow, and is discharged through them from a higher to a lower level, but which at other times are destitute of water. Such hollows or ravines are not, in legal contemplation, watercourses.' (See Sanguinetti v. Pock, 136 Cal. 466, 471-472, 69 P. 98.)

However, as to the difficulty of applying this definition, we find the following statement: "While it is ordinarily defined as a stream, containing a definite bed, banks and channel, which flows into some other river, stream, lake or the sea, none of those characteristics is an absolute fixed factor. A watercourse may exist even though it serves as a mere channel by means of which a particular watershed is drained, and although it may be dry in certain seasons * * *." (Phillips v. Burke, 133 Cal.App.2d 700, 703, 284 P.2d 809, 811; Costello v. Bowen, supra, 80 Cal.App.2d, p. 627, 182 P.2d, p. 619.)

Thus, we are left with a somewhat nebulous concept, the only concrete element of which seems to be the requirement of definite bed, banks, and channel. As to the definition of a watercourse which the trial judge applied in deciding in favor of defendants, it appears from the findings that he relied heavily on the concept of the presence or absence of a bed, bank, and channel. ¹ The court specifically found that there was no live stream with established banks and bed and channel leading into the said reservoir. Its finding that no name exists for the gullies or ravines leading into the reservoir is immaterial on the issue of the existence of a watercourse. We can find no authority which considers the presence or absence of a name in determining whether a watercourse in fact exists. On the contrary, in the case of Lindblom v. Round Valley Water Co., 178 Cal. 450, 173 P. 994, the appellate court reversed the court below and held that an apparently unnamed stream running through a certain North Canyon did constitute a watercourse. The opinion makes no mention of the fact that the stream was nameless.

As for the finding that the reservoir 'is fed only by the runoff of waters in the time of heavy rainfall from the natural drainage of waters resulting solely from said rainfall,' this fact, in and of itself, does not negate the existence of a watercourse because the runoff from the annual rainfall can constitute a watercourse. (Lindblom v. Round Valley Water Co., supra, 178 Cal., p. 453, 173 P., p. 995.) The critical factor in determining whether water consisting of the runoff from the usual and recurring rainfall constitutes a watercourse is whether or not it runs in a well-defined channel. (Lindblom v. Round Valley Water Co., supra, 178 Cal. (p. 453, 173 P., p. 995.) In Lindblom, it was held that runoff waters resulting from the usual and annually recurring fall of rain and snow, draining from the surrounding hills into and through a ravine, the bottom of which bore every aspect of a well-defined stream channel, was a watercourse.

Turning, then, to the evidence adduced at the trial on this issue, we find that it consists of testimony, two aerial photographs of defendants' property, and a view by the judge of the locus in quo. We analyze, first, the testimony of the witnesses. Mr. Scheidegger, who owns the property adjoining that of defendants and had 'been over there [on defendants' property] many times,' testified that the water filling defendants' reservoir 'comes from the two little creeks that flow into it'; that these creeks are 'about a quarter of a mile long'; that 'there's [a] well-defined creek bed'; that these creeks 'flow continually until, oh, about April, depending on the rains, naturally'; that '[n]ormally they flow every year.' Mr. Gwinn, who formerly lived on part of defendants' property; Mr. Gilbert, a surveyor who surveyed defendants' reservoir; and Mr. Todd, an engineer involved in the reconstruction of defendants' reservoir in 1959, all testified unequivocally that the water flowed into defendants' reservoir via two ravines which showed definite channels, and that the water in these ravines flowed when the other watercourses in the area were flowing. ²

Testimony was also adduced from Marteil Blair and Mrs. Ora Johnson, two of the defendants and owners of the property in question. Blair, called as an adverse witness by plaintiff (Code Civ.Proc. § 2055), testified as follows: that the water got into the reservoir 'from these hills that are back of it'; that the water from these hills flows down two ravines into the reservoir area; that these waters flow only during the rainy season; that they flow as long as 'there's water seeping out of the ground'; that if it were not for the dam of the reservoir on defendants' property 'the water would go down a normal course'; that that course is '[d]ownhill'; that there are other courses 'around there' and that these and the two courses on his property 'are flowing about...