The herald., 1896-12-13

were litigated by the predecessors in in
terest of plaintiff and defendant Lytle
Creek Water company. That Judgment
determines that the defendant therein
had no right or title to any of the waters
of Lytle creek except only such rights
as they may have of like character with
that of plaintiffs, as being riparian pro-
prietors," and enjoins defendant from
setting up any right, title or interest in
said premises, and particularly from any
claims therein to the use OF dltches upon
plaintiffs said premises, or to the waters
of Lytle creek except as riparian pro-
prietors, as aforesaid"
1t is therefore clear that as between
plaintiff and defendant Lytle Creek wa
ter company, the latter has no title to
any of the waters of Lytle creek, except
such as it has acquired since December
goth, 1879 the date Of the decree IN Pope
VS.. Kinman, as all of the persons under
whom it claims were parties to that ac-
tion and their rights determined by that
judgment.
1t appears that after that judgment,
the predecessors of the Lytle Creek Wa
ter company, and the company, contln.
ued to use the water as before, until
about 1886, when their use was interrupt
ed by Firth, and then by the Semi
Tropic Land company. During the pc
riod from 1879 to 1885, the use of such wa
ter as defendant and its predecessors
needed always excepting the Lord wa
teri. was in no way physically interrupt
ed by any person.
am Of the opinion that the evidence
fully establishes a use by the Lytle
Creek Water company and Its grantors
during the period between 1879 and 1885,
which had all the elements necessary
to establish title by prescription, and
bars plaintiffs cause Of action against
this defendant, except as to the riparian
srtf &c Of y,1e ir,ft in q a.
son of the ownership of its grantors OF
, land above the point of diversion
through the old zanja.
Since this portion of plaintiffs riparian
right is unaffected by the water rights
of the Lytle Creek Water company it
must be considered separately from the
other portion of the riparian right which
is subject to the rights of defendant
company.
The defendant (CampbelD claims
under deed for $50 inches to be taken
at the Lord gate from the Lytle Creek
Water company. That company at the
time was owner of the right to use a
large portion of the water of Lytle creek.
and had been Incorporated for the pur-
pose of buying, selling and distributing
water 1t conveyed $50 inches of water
, to the Semi-Tropic company, which, in
turn, conveyed to Campbell.
The transaction had many features
which might we'll have been investigated
in court Of equity long ago. but the
evidence does not show any fault or
fraud on the part of Campbell. who gave
a large and valuable consideration for
the water right. Whatever may have
been the fraud in this transaction it was
that of the directors of the Semi-Tropic
Water company, who also controlled the
LNtle Creek company, and manipulated
this deal by which the Lytle Creek
| Water company gave a valuable water
right and received worthless notes.
AS far as Campbell is concerned the
transaction at the most was only void
able and the statute of limitations had
run before any attack was made upon
it in this case, and defendant Lytle
Creek Water company'S cross complaint
has therefore not been sustained.
The legal title to the water right in
question is vested in Campbell. and there
is no reason why he cannot maintain an
action to quiet title, and none of the OBJ
jections made against his claim have
ben sustained in this case. He is there
fore the owner of the right to $50 inches
delivered at the Lord gate, which fol-
lows in priority the rights before men,
toned.
AS the evidence shows loss Of 25 per
cent in carrying the water to the Lord
gate. this right is equal to 200 inches
taken at PLAINTIFF intake.
This right is prior to that of the Lytle
Creek Water company which is entitled
to the amount of water which is used
! during the period from 1879 to 1885, less
the amount conveyed to Campbell.
Considering all of the evidence as to
the amount used ard the size of bitches,
find the amount taken out of the strea m
by the Lytle Creek Water company,
including the Lord water afterwards
turned out, was 725 inches. OF this 120
inches (amount necessary to supply SO
inches) is to be deducted for Lord water,
leaving COS inches. taken at intake of
old ditch, to which the Lytle Creek
Water company acquired title by pre-
scription
The evidence shows a loss of seven
per cent between plaintiffs intake and
old zanja, making this amount equal to
$50 inches at PLAINTIFFS intake, of which
Campbell has acquired title to the first
200 inches if taken at that point. leaving
the Lytle Creek Water company the
owner of the next $50 inches at that point
of diversion.
Plaintiff claims that his riparian right
extends to all the lands of the Semi
Tropic company, without regard to the
watershed. as to other riparian owners.
If such be the law. there is no limit to
the extension of riparian right by pur
chase. except the ocean and the purse
of the riparian owner.
The title to both land and water was
originally vested in the United States,
the source of title. Whenever the gov
ernment conveyed a tract of land bor-
dering upon the stream, the riparian
right passed with it, and the remaining
land had no riparian right: when all
lands adjoining the stream had been
conveyed the riparian right was vested
In those lands. IF the purchaser sold
and conveyed all of his frontage upon
the stream the riparian right passed
with the frontage and the interior land
ceased to be riparian. Once segregated,
the riparian right cannot again become
attached to the interior tracts by pur-
chase. the rule be otherwise. riparian
rights are uncertain and variable and
subject to increase at the will of the per-
son owning riparian land.
I am. therefore of the opinion that
Plaintiff has no riparian right, except
such as formerly belonged to its grantors
on account of the ownership of the Mus
cupaibe
i am of the opinion that the evidence
shows that 600 inches is the amount of
water that would be sufficient for rea-
sonable irrigation of the riparian lands
of plaintiffs grantor within the water
shed of the stream. Plaintiff is, there
fore. the owner of the next right in the
water of Lytle creek to that amount.
Next in order comes whatever right
plaintiff has acquired by appropriation
The doctrine of appropriation is an
outgrowth Of the peculiar situation and
character of the land and settlement Of
this state. 1t was unknown to the COM
mon law, under which the usufructu-
ary right to the water of a stream be