The herald., 1897-08-03
A WATER SUIT
In Which Judge York Files
an Opinion
MANY PEOPLE CONCERNED
AND THOUSANDS OF ACRES IN
THE AZUSA DISTRICT
The Court Sitting in Banc Decides
Harris and Jenkins Must Re-
main in Jail

In deciding the case of the vinelant
Irrigation district VS.. Azusa Irrigation
company ct al. Judge York in lengthy
opinion, holds that party, entering into
the possession of waters flowing in pub
lie lands without any attempt to comply
with the provisions of the civil code pre-
scribing the steps to be taken to secure
the right to appropriate such waters, is
the mere occupier of the use, and has nc
title thereto except as against a subse-
quent occupier who has not completed
an appropriation in accordance with the
code requirements. That to occupy the
use of the waters of river, so as to en-
title a party to maintain possession
there must be an intention to so occupy
A subsequent occupier is not required to
take notice that an occupation without
such inten ton is hostile to him, and it
constitutes no reason why the subsc
Quent occupier should not proceed with
a diversion of the stream. That such
occupancy must be open to public obser-
walton to that extent that subsequen;
appropriations may know of the appro-
priation and be put on inquiry as to its
extent. That the prior occupier must
have subjected the water taken by him
to some useful purpose. That subter-
ranean stream, having well-defined
banks and flowing in a certain course, is
subject to appropriation. That such sub
terranean streams. to be subject to ap-
propri1tion as against the right of an
other to appropriate the surface flow
of the stream from which such subter-
ranean streams diverge, must be capable
Of an approximate measurement. so that
q court can fix, with reasonable certain
ty, the amount of water 90 flowing to
compensate for taking the same into the
surface flow, in order that subterranean
waters not husbanded should not be
wasted; otherwise a wasteful policy
would be established. for to protect the
claimant in the underground flow would
necessarily prevent the taking into the
surface stream of water percolating
therefrom, not husbanded Waters per-
colating from a stream through a wide
and underlined strata of sand, gravel and
boulders can not be occupied so as to
prevent subsequent appropriation of the
surface flow of the stream from which
1t percolates, or so as to prevent an ap-
ping leakages in the bed of the stream
Judge York finds that plaintiff did not
manifest any intention. to appropriate
waters of the San Gabriel river; that its
acts open to public inspection did not
put defendants on inquiry as to such in
tention, and that the waters found in its
tunnels were percolations extending
through an underlined, strata of sand
gravel and boulders, and not capable of
measurement and hence not subject to
appropriation as waters of said river.
Judge York further holds that, where
waters are slowly percolating from the
surface flow of river, and their inter-
ception by tunnel would accelerate
such percolation, a subsequent occu-
pier in the construction of tunnels into
the strata through which such water
percolates is a trespasser against one
who has previously appropriated all Of
the surface flow below where such wa
ters percolate from the main stream
That in an appropriation under the code
provisions a substantial compliance
Herewith is sufficient. That a recorded
notice of appropriation which describes
the place of intended diversion as there
flowing" with other language sufficient
to designate the stream and put subse-
quent appropriations on inquiry, which,
pursued, would lead to certainty as 10
the place of intended diversion, is suffi-
cient. That the effect of recording or
non-recording, in such cases, is not the
same as in cases where such effect is
specified in the code. That the notice
posted at the point of intended diversion.
where actual work in pursuance there
Of is in progress, is, together with such
recorded notice, sufficient to put subse-
quent appropriations on inquiry, which,
II followed up, would give sufficient no
tice of the place of intended diversion.
That subsequent occupier of the use
of waters, without any attempt to COM
ply with the laws of appropriation, has
no right to complain because of the
change by prior appropriation, where
by waters subjected to one beneficial
use are diverted to another equally ben
eficial use. That, in deciding whether
work under notices of appropriation has
been prosecuted with reasonable dill.
gence, all the circumstances of each par
ticular case should be considered. such
as whether the work could have been
prosecuted all the year round the physi-
cal conditions of the country through
which the proposed diverting works
were constructed, whether the work was
to be prosecuted through soil easy to
penetrate or through solid rock, the ex-
tent and magnitude of the work pro-
posed, and the expense to be incurred
The law does not require in such cases
any unusual or extraordinary efforts
but such efforts as are reasonable
usual or ordinary. That the remedy by
injunction is preventive in character
and where the injured parties have
stood by and seen tunnel constructed
without action on their part, a court
: should not require the tunnel to be
closed up, especially where the injury
to complainants by such construction
is not shown to be great, or more than
they had reason to fear when the tunnel
was in process of construction. Com
plainants should not, however, be de-
barred of their remedy by a judgment
in premature suit, should it subse-
quently appear that such tunnel is more
injurious to their rights than they had
cause to fear during its construction.
That in case of a threat or manifest in
tention to extend such tunnels, to the
great and irreparable injury of COM
plainants, the court should enjoin such
extension.