The herald., 1898-09-13
A NEW TRIAL
Supreme Court Passes on the Alhambra
Water Case


The supreme court has granted new
trial of the water suit entitled +. l..
Mayberry vs. Alhambra Addition Water
company. The suit dates back to the early
days of the county, and Is the outcome OF
contract entered into between two large
property owners in San Gabriel valley.
In 1860 B. I. Wilson owned large tract
of land, with water rights and stream
flowing in a canyon called Mill stream.
Adjacent on the south Of Wilson'S land
and traversed by the lower course Of the
stream was tract of public land, 154 acres
in extent, occupied by f. j. c. kewen, to
which he later acquired title. For the pur-
pose Of using the flow Of The water between
themselves for irrigation, Wilson and
Kewen entered into a contract whereby
Wilson granted to Kewen the right to
enter his (Wilson's) land on the west side
of the canyon and take the water flowing
through a certain ditch and use the same
for irrigation of his land during Friday and
Saturday Of each week. Kewen on his part
granted to Wilson the right of way over his
154 acres for the construction Of bitches and
10 conduct water through the same for
such outside points as Wilson might select,
subject to the right Of Kewen to use for ir
IlRatlOn. HG COElTdCt UOuIu me dsslSHo
of he parties 10 keep the agreement.
The Alhambra Addition Water company,
the defendant In the present action, sue
ceeded Wilson by purchase and secured all
water rights as well. In like manner
Mayberry acquired the interests of Kewen
in the contract and title to the 154 acres of
land and also the title to fifty acres of
land lying north of Kewen's original tract.
Wilson all water rights in the nifty acres.
On April IS, 1896. the water company COM
menced suit against Mayberry, The princi-
pal object being to determine the rights of
the parties to the water covered by the con-
tract. In this case the court held tha: the
water company was entitled 70 the exclu-
eive use Of the water in the canyon, subject
10 specified rights Of Mayberry, and that
It had, and Mayberry had not, the right
to develop water on the fifty acres. Ma
berry appealed the case and the supreme
court affirmed the judgment Of the lower
court, excep: in the particular Of the de-
velopng Of water. The supreme court
held that Mayberry had the rigb; to devei-
op water, II it did not interfere with the
flow Of the stream.
Shortly after the suit the water company
DcSdH d series VI tAp4OIdt4OIS lUT NdAti
In the canyon above the holdings of May
berry, and continued the same during a
period Of five years.
The present action was Instituted by
Mayberry on July II, 1894, :he main question
involved being whether he may use the
water added 20 the stream in the manner
he used the natural flow covered by the
contract. He claimed the right, both
\, ~ i,,lrr
der the former suit. The lower cour. held
that the contract gave Kewen the right 20
enter on Wilson's land and take Fridays
and Saturdays "the water flowing In said
glen" These words, the court held, rea-
sonably denoted the then existing natural
flow of the stream, and do not reasonably
denote water TO be in future artificially de-
veloped or imported by Wilson or his as
sign. It was the courts opinion that the
right TO the artificial increase was quite
distinct from the title Of the natural flow,
ard the owner thereof might. If he wished,
reclaim it from the channel.
Prior to November, 1892, plaintiff was ac-
customed to diver; the water for rriga lion
on Fridays and Saturdays from the acque-
ducts of plaintiff into which flowed the
stream. At that time the defendants un-
QtFlpok 70 dppOrl!OH 10 pldlNlllI the guam
ti;y of water which il assumed to be the
natural flow and thereafter measured the
same. The amount received by the plain
tiff was fifty inches under four-inch pres
sure; or the amount held by the court 70
he the natural flow.
AS the object of the present action was
to enjon the defendant from Interfering
with the use Of the water, the supreme
Of the parties may be defined.
The court, after considering the views Of
the lower court on the rights believes tina.
while the court is satisfied on the main SUBJ
5ect of dispute-the use Of the water de-
ve!oped by defendants-the decision Of the
lower court was right yet because Of the
error in defining the natural flow of the
Stream and to the end tha. the error may
be corrected. the order denying a new trial
Is reversed.