Daily Los Angeles herald., 1879-08-16

interruptedly and adversely to the
world, defendant or any other per-
son, and denies any adverse claim
to the right of the defendant to
control the water of said river
having ever been set up until with
in two months last past.
Admits that said ditch has been
used by plaintiffs and their grant
ois from the time Of its construc-
tion, for the purpose of irrigating
land, but only by permission of de.
fendant. Denies that it has been
used during that or any other Pc
riod adversely to defendant or un-
der any claim of right.
Denies that since the construc-
tion of said ditch, water has been
used to the extent of 100 inches un-
der four inch pressure, continuous
ly or at any time, except with the
implied consent and permission of
defendant.
Denies the injury to the crops or
that the same will perish or be in
jured.
Defendant further, by way of
cross-compiaint, sets up title in it.
self to the waters in controversy,
and asks to have plaintiffs re-
strained from the use thereof.
In support of its answer and by
way of denying the equities set up
in plaintiffs complaint, defendant
introduced certain aflidavits. From
one or more of these land, indeed,
this fact was conceded) it appears
that the lands irrigated by the ditch
in controversy are within the city
limits.
1t appears, from the affidavit of
G. Aguilar that he owned the land
in controversy and lived there for
ten years, beginning in 1874; that
he used the water for irrigating less
than fifty acres OF land. When he
sold he only conveyed the right he
had in the land. In that time any
one could make a ditch in the linn
it's of the city. He says: II never
understood that 1 had any other
right to the use of the waters of the
river than the rest of the people
living within the city," 1t will be
observed that this is the person
from whom plaintiffs deraign title,
and is alleged to have originated
the adverse uses of the water.
J. w. Potts says in his affidavit:
"Within the last eight years have
known of the Corallitos ditch and
that water was often taken through
it for lrrigating purposes. 1 once
made contract to plant trees on
the land. Captain Hunter was then
owner OF the land. L understood
from Captain Hunter, and that was
my idea, that the city was allow
ing the parties living on the ditch
to use the water if they would keep
the ditch in repair. Captain Hun
ter did not set up any claim of right
against the city,"
Antonio f. Coronel states that
those living on the Corallitos were
always considered as living in the
city, and had the same rights as
other citizens to use the waters of
the river; that he has never heard
of people in that neighborhood set
ting up any right adverse to the
city.
Stephen &. Foster states that he
was Alcalde in 1859, and remon-
stratcd with the owners of the Cor
allitos that they were wasting the
water. They said, "Very WE'LL"
and let it 60 into the river. II gave
my orders andthey obeyed them"
He testified that grants were made
by the authorities of the city Of land
for settlement, but he never heard
of any water rights being granted;
the use of water was common.
1t is established by numerous af-
fidavits that under Mexican regi-
me the authorities of the Pueblo
always ass md when dis.
puted main ut of the
Pueblo to ''"s
in the rive
Zanjas w9
thOrities
Pueblo,
of the W
control, a.
common to all Ia
Gus aflidavits Of oIu
among them officials of the -
are produced upon the point of ad.
verse user by plaintiffs, and they
state that although in a position
to know, they have never heard
till recently of any adverse claim
set up by plaintiffs or their grant
ors.
1t appears from the affidavit OF
the ZanjerO that plaintiffs, on APP
plication made, would receive the
water on the same terms as other
residents of the city.
/ conclude from the foregoing
affidavits and the answer that the
equities of the complaint are fully
met and denied, and therefore shall
refuse the application for an in
junction upon the authority of
Crandall VS.. Woods, 6 CAL, p. 449;
Gallardo Va. Carpin, % ib., p. 1862.
Had u different conclusion been
reached, it would still seem impro.
per to grant the injunction as pray.
ed for, since there is no allegation
in the complaint that the whole of
the 100 inches Is necessary for the
use of plaintiffs; nor is it claimed
that plaintiffs have ever used water
to this extent. The only allegation
relating to this subject is that wa
ter to the extent Of 100 inches did
continuously flow in the ditch for
a certain period. For aught that
appears in the complaint ten inches
might he sufficient to supply all the
uses to which plaintiffs could apply
the water, and in such an event 1t
would be inequitable to restrain the
defendants from using the balance.
STEPHENs, Judge.