Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-08-03
RIPARIAN RIGHTS.
THE DIVERTED WATERS OF KINGS
RIVER AND COLE SLOUGH.
The Supreme Court Renders a Decis;on
of Great Importance TO Land
Owners.
[san Francisco Bulletin, August ID. /


A. Hebron and others are tenants in
common of the Kings river ranch, contain
| ing about 6fty-four thousand acres of land.
Kings river forms ore Of the boundaries of
the ranch. A brasch of the river called
Cole Slough flows through the ranch dis
lance of about ten miles, and st ordinary
stages carries the greater portion Of the
water of the river. Heilbron and his assc-
ciates, for the purposes of growing crops
snd grasses and aGeTd water for their IS eco
head of grazing stock, constructed dam
and canals on Cole Slough. and they have
some 5000 acres Of alfalfa moistenei by
the Cole Slough water The Seyenty-Six
Land and Water Company constructed
canal about one hundred feet wide ana flur
feet deep With grade eighteen inches 10
the mile, which d.verts the water from,
Kings river above the Hebron lands 10 The
extent OF about one thousand cubic feet of
water psr second. None of this water is !
returned to the river as it is 6issiDate,i by
absorption or evaporation B7reagoa of The
latter diversion the water aDwiag upon the !
Hebron lands Is insufficient for the pur-
poses oi the ranch. The canal of The
SeYeaty-six Company is sufficient TO
divert all the water Of the river at low !
stages.
S4ch are the allegations in a complaint |
hlsd by Hebron aud others against The |
Seyenty-six Company
The answer OF the latter denies that il
was organized 10 divert the waters Of |
Kings river ur that It's canal has 3 capacity
OF more than $50 fee: of water. It admits |
that 1t owns 5000 acres of land in Fresno !
and Iulsre counties; says that Kings river !
hoWS some nine miles along snd forms one
OF the boundaries Of the tract, and claims
that Its canal was constructed to ir,igste |
this land 10 produce hay, grain and yege-
tables, fruits, etc, and that its intention +.
was aId Is to take pnly a son2ble quan-
hiy Of water for such purposes.
The Court in which the case was tried |
found the ALLEGED necessity for water on |
the Hebron lands to DE as alleged. 1t
further found that the,SeyeDtv. Com |
pany constructed a canal from Kings river, |
about twenty five miles above Cole Slough !
that IN January, 1884, the company COM
menced diverting- the water from the river
channel, and has since continued 10 divert |
some 100 cubic feet Of water per second 20
lrIlgate lands distant from the river. so
that there IS not sufficient water flowing !
down the river for cSttte on the Hebron |
lands, or 10 irrigale tie alfalfa fields The
Court further found that water il necessary
10 lrrlgate the Seyenty.six CompaGy's lauds
to produce crops.
Jadgment was entered that the Seventy
SIX Company De foreveT enjoined from d. |
Terting any water :ssm Kings river By its
canal, and that it ill up the head of its
canal SO tina; no waters shall flow tberein
from the river. TIE company appealed
from ;bis judgment ana an order denying
a new trial.
kA a a.,
cision finds that the Seventy six Company
is riparian proprietor shove the Hebron
property; that It's lands can be irrigated
with water carried through its canal, and
that irrigation is necessary to make them
productive; that it is entitled to make a |
reasonable use Of the water of the stream
Tor irrigation purposes, and tits only for an
unreasonable and Unauthorized use that All !
action will lie. What is 8 reasonable uss
IS question Of fact and depends upon the !
circumstances appearing il each PARTICULAR
case. The fact that the company has not |
yet used the water upon its own land can
not destroy or impair it's rights 1t NAV at |
any time chang lis intention in this re-
spect. This being so, we are unable to
see now tie Court could grant a perpetual
injunction restraining the company from
ever, at any time, O. for any purpose, cans
ing or permitting any water from the river
" INV IulO vi toWu 1S canal. Beside, !
there may be times Of food or high water
when no one below would be Injured if
the company's canal should carry away
from the river surplus water to its full |
capacity. Why should the Company be re-
qulred to bill up the head of its canal so
tina. no water at such times can flow into
it2 From what has been said it is not to
be understood that the company has q
right, as against riparian owners further
doTn the stream, 10 divert water from the
river for the purpose OF sale or for use of
lands which are not riparian"
The case is renarded with directions to |
the Court bslow to enter a decree in con-
formiiy with the views expressed in this
opinion.
On the Is: of May, 1874, the Lakesdale
Ditch Company diverted from Cross creek,
TulaTe county, sufficient water to fill its
ditch. which was 80 feet wide on the bot.
tom, 46 feet wide on the top and 4 feet
deep, with q fall of one foot to mile and
Continued TO keep it fun so long as there
wss enough water in the creek to ELL it
and when there was not water enough to
nil the ditch the company took what water
came down the creek in It's natural flow !
In 1876 Crane and Hayes diverted waler
further up the stream by what is known ss
the Hyde ditch. In an action brought by
the company against Crane and HAYES the I
Superior Court decided that the latter had
no right to any water until the ditch of the
company wss supplied to It's fullest cana
city. The Supreme Court has reversed this |
judgment sud remandsd the cause for a
new trial. Il is stated that the findings of
the Court below are too indefinite, and
suggested that the Court fad what guam
tity OF water the company is entitled TO
have iow past Crane and Hayes iitches by
inches or gallons, and not by ditch dimen-
sioDs.
Ba.A. daaah and nsarrsoqs ,o..oes naast Be scra IN