The herald., 1896-01-19
/. TIRE FIRST SK|RM|SH WON
Securing Municipal Ownership
of Water Works
POMEROY CASE DECIDED
The City Has a Right to Fifteen Cubic
Feet of Water
And Can naintan Ditch of Sufficient Size
to Carry That Amount Judge
Shaw's Opinion
POMEROY CASE DECIDED

the fight for the municipal ownership of
the waterworks to supply Los Angeles with
water for domestic purposes, and has made
great stride forward in settling the mat
ter of the proposed headworks for such sys-
tenn. In the case of the city of Los An
geles VS.. A. e. Pomeroy ct al, Judge
Shaw yesterday decided that the plaintiff
has the right to maintain, on the line de-
scribed, ditch of size sufficient to carry
fifteen cubic feet of water per second, and
to take the water therein, and is entitled to
an injunction to prevent defendants from
interfering with the same or with the water
running therein
This is an action by the plaintiff against
the defendants to enjoin the defendants
from destroying or Interfering with GER
tain ditch and dam, alleged to be owned
and possessed by the plaintiff, and from
interfering with the water which plaintiff
alleges it has the right to have flowing
therein. The dam and ditch are situated
on the Providencia rancho, some five or
six miles north of the city limits and the
water has been by means thereof diverted
from the Los Angeles river by the city, and
conducted to the city and there distriDu ed
for public and private use. The COM
plant alleges that the city is the owner
of all the wafer of the river from its source
to the south city boundary. The answer
denies the right and title of the city to the
ditch and dam, and denies that the city
has any right and title to the waters of the
river flowing in any part of its course
within the Providencia rancho. The de-
PENDANTS are the owners of the part of the
Providencia rancho through which the
river runs at the place in controversy, and.
while they admit that the city may have
some right to the water flowing in the
river below their lands, they claim that
the right does not extend to their lands,
IN, rxxrofn of tlfar rfua in, hot ,arf
of it's course included within their boun-
daries, but that on the contrary, they are
the exclusive owners Of the waters of the
river and of the right to control the flow,
and to the use thereof, within said
boundaries. The city had been. for some
years prior to 1892, dverting the water at
point below the defendants land. and in
that year it changed the place of diversion
to the point in controversy, and its right to
do this is the question for consideration.
Judge Shaw, in his opinion, says that
"the case naturally falls into two divisions
First, as to the right of the city to divert
the water of the river at the dam in con-
troversy; and, secondly, as to its title to
the dam and ditch. The first point in Or
der is one of great Importance to this city,
and somewhat out of proportion to the in
terests at stake in this action" The judge
then goes into a discussion of the rights of
riparian owners, and concludes that the
city's right to the waters of the river are in
cluded among the rights of the ancient
Mexican pueblo to which the city has sue
ceeded.
As to the facts concerning the ditch in
question, the judge says
"On October 3, 1915, Vicente De La Osa
was the owner of the Providenca rancho,
including the premises in question, and
Maria Ygnacia Verdugo was the owner of
all or "a part of the Los Feliz rancho.
situated on the river next below the Provi.
dencia rancho. On that day De La Osa
granted and conveyed to Verdugo "the
right to open zanja'' over the Providencia
rancho, and "to use the water of the river to
irrigate the lands of the potrero," which is
portion of the Los Feliz rancho. Under
this grant the owners of the potrero made
the ditch in controversy, and by means
thereof used the water of the river for irri
CATION on the Los Feliz rancho. By mesne
conveyance this portion of the Los Feliz
rancho and the ditch as an appurtenance
thereto became the property of Charles V.
Howard, who, on December 2. 1868, con-
veyed to the Canal and Reservoir COM
pany the right to use the ditch with a ii
the easements and rights thereto appertan-
ing, together with the right of way over the
portion of the Los FeiiZ ranch and Provi-
dencia ranch, for the purpose of convey
ing water from the river through said
ranches to any place. This company was
corporation organized to carry the water
of the river to the city to be used for irriga-
ton. Thereupon the Canal and Reservoir
company took possession of the ditch and
conducted water through it from the river
to the city and there distributed it for the
irrigation of land within the city until
June 20, 1872. On that day this company
made lease of its entire ditch to the city
for the term of thirty mon hs, with the
privilege of purchasing the same at price
stated. The city then took possession of
the ditch and used it for the same purpose.
On August >, 1878. and after the citys
option had expired, the Canal and Reser-
voir company, by deed, conveyed to the
city all that part of this canal located
within the city limits. This sale does not
appear to have been made on the terms of
the option. 1t has been stated that the
city attorney in Office at that time, Mr..
Godfrey, did not believe the city had power
to hold title to property situated outside
the city limits. and that, on his advice the
conveyance was limited TO the por-
ton of the canal within the city.
The city has ever since then con
tinued to take water from the river through
the ditch, but has not always used the
whole length of it. In the year 1877 the
city. enlarged the ditch SO as to about
double its capacity, which, after the en-
lsrgement, was thirty cubic feet per Sec
ond. About the year SIS pile dam was
made lower down on the river below the
line of the Providenca ranch, and there
after, until the fall of 1891, the water was
taken from the pile dam and other tempo
rary dams near it, and the part of the
ditch lying within the Providencia ranch
was not used. In the fall of 1891 this un-
used part of the ditch was cleaned out by
the Citizens Water company, and in the
spring of 1892 the city again took charge
of this old ditch, and ever since, during
the irrigating season, has continued to di.
vert the water at the old place of diversion
and conduct it to the city through the
ditch. The dam maintained at this point
has never been anything more than a mere
temporary bank of sand and brush, made
by extending the ditch into the river and
throwing out the sand on the lower side,
and it washed away every winter. During
the time the ditch was not used / t
became filed up to a great extent by
dirt and rubbish, and was, in some places,
overgrown with willows and weeds. but it's
course was marked on the ground so as to
be plainly visible. On December 2S, 1886,
the Providencia ranch was conveyed to
the Providencia Land. Water and Develop
ment company, and on March l &, l S92. the
land on which the ditch in question is situ-
Sted was sold and conveyed to the de-
fendants. 1t does not appear that, at the
time the land was sold to the Provdencia
Company, any actual notice was given TO
that corporation of the existence of this
ditch. or of the claim of the city thereto,
except such notice as the existence of the
ditch and its appearance on the ground
would impart. At the time it was pur-
chased by the defendants it was in use by
the Citizens Water company, and they
s knew of the existence of the old ditch.
wwun- Il l. L.