Los Angeles herald., 1891-06-04

unnatural.
s'The complaint in this case alleges
ownership and right OF use in a certain
portion OF the waters OF the Santa Ana
river, an adverse and unfounded claim
by defendant to, and a wrongful diver
sion OF, portion of such waters.
'sThe answer admits defendants ad-
verse claim, alleges that it is valid, and
denies the wrongful diversion.
s'The findings of the court are as
broad and as specific on these points as
the pleadings themselves, and contain
everything necessary to support the
judgment.
.'If the findings as to prescription and
statute of limitations are not sufficient
as findings on those points they may
be left out of consideration, and
still the judgment is sustained by
the findings that remain. OF course, if
there was anything in the findings in
question inconsistent with those which
are required to support the judgment,
they could not be left out of considera-
tion, but they present no inconsistency.
They also support the judgment, so far
as they go, and the only fault found with
them is that they are not sufficiently
specific.
cit may be contended, however, and
no doubt that is the view of appellants
counsel, that the matters alleged by the
defendant in his answer rendered full
and specific findings on those points nee
essary.
1.-The answer OF defendant sets up the
facts, among others, that the Santa Ana
river rises in the mountains and flows
through narrow caflon for about thirty
miles to the point where the river de-
bouches into the San Bernardino valley.
That Immediately below the point where
it enters the valley its waters were d.
verted by appropriations, not parties to
this suit, as early as 1857, who have
ever since continued to SO divert
and use such waters; tnat other appro-
priators made subsequent appropriations
lower down on the stream by means of
bitches and for purposes sufficient to
more than exhaust its entire flow. That
the plaintiffs pretended claim is subse-
quent and subordinate to all these ap-
preparations, and his point of diversion
below them on the stream.
''To certain of these earlier rights by
appropriation the defendant claims to
have succeeded and by reason thereof to
have right superior to that of the
plaintiff. He plants himself, in other
words, upon the ground of prior appro-
priation and prescriptive right.
Gas to all these matters the findings
of the court are full and specific. 1t is
found that there were such earlier ap-
propriations; that the defendant has
succeeded to the rights of certain of the
to him by the decree is the quantity
soh - fo ia fa1 1,x
his grantors prior to the appropriation
under which the plaintiff claims.
"There canabe and there is no COM
plant that the findings are insufficient
as to the rights of the defendant as an
appropriation.
sBut in addition to the appropriations
upon which the defendant seems mainly
to have relied, he did allege in his an
swer that he was the owner OF tract
of land containing about 2600 acres,
through aud over which the Santa Ana
river flowed for a distance of about
three miles and that most OF the tract
was susceptible of and would be bene-
fited by irrigation. He did not, how
ever, allege that he was entitled, as a
riparian owner, to any definite quantity
OF water for the irrigation OF his riparian
lands, nor did he allege any facts show
ing or tending to show what proportion
of the waters of the stream he could
reasonably exhaust for that purpose.
Nor is it alleged whether his land was
above or below the point of plaintiffs
diversion.
''In short, we think the answer in
sufficient to raise any issue as to the
extent OF defendants rights as, a mere
riparian proprietor to divert and ex-
haust any portion of the waters of the
stream. The finding on this point is as
full and no fuller than the allegation
and does not conflict with the general
finding in favor of plaintiff as to owner
ship of the water decreed to it.
''It is not necessary, therefore, to sup
port the conclusions and Judgment of
the court, to find that the plaintiff had
gained perscriptive right or that the
defendant was barred of his riparian
right; and conceding these findings to
be as insufficient as appellant contends
they are, we think the other findings
cover all the material issues, and fully
support the judgment.
Judgment affirmed.
BEATTY, q. j.
We concur:
MCFARLAND, j.
PATERSON, j.
GARoUTTE, j.
SuAPpSTEyN Il