Year: 1879

ulate and control the use and dis
tribution of the waters.


The answer, like that in the for
mer action, sets up the title of the
defendants to the Los Feliz
Rancho, derived through the grant,
the confirmation of the title, and
the patent issued In pursuance OF
the decree of confirmation; and
states that the rancho Is bounded
on the east by the river; that the
grantees of the rancho and their
assigns, since the grant, have con-
tinuously claimed and exercised
the right, adversely to the plaintiff
and all the world, to use the waters
of the river for Irrigation, and that
they have not taken more than
their fair proportion of the waters,
to. wit: two irrigating heads. AS in
the former action, the answer states
the construction of the ditch, the
grant of the same and the right of
way for Its extension, to the Canal
and Reservoir Company, its exten-
sion by the company to the city, a
lease of the same by the company
to the city, the reservation in the
grant to the company OF the Right
on the part of the defendants to
take from the ditch all the waters
necessary for the irrigation of the
lands of the rancho; and AYERS that
the right of the city to the waters
of the ditch are derived from the
lease. 1t also AYERS that the city
had q surplus of waters, both of
x~,.to~e a. ~; ., - IN ti,o ditaI, aud Of
that which is taken from the river
by other ditches, above the amount
needed for irrigation in the city.
which II Is selling to parties for use
without the city.


The answer sets up IN bar the for
mer judgment, and the Statute of
Limitations.


The Court found that the former
action was brought for "substan-
TALLY the same cause of action as
that set forth in the complaint here
in, that there was put in issue the
right of the defendants to appropri-
ate, and use upon the Los Feliz
Rancho, the amount of water then
used by them from the river-to-
wit, two irrigating heads; that said
issue was material, and was de-
termined in favor of the defendants;
that all the issues presented by the
pleadings in this action, except
that of former recovery, were pre-
sented by the pleadings in the
former action; that they were ma
terial issues and were determined
in favor of the defendants by the
Judgment in the former actiou."


The Court also found the other
facts in Issue in substantial con-
formity with the findings in the
| former action-anj among others,
that since 1871 the defendants have
continuously claimed and exercised
the right to appropriate and use the
waters to the extent of two irrigat-
ing heads advertisely to the plain
tiff. 1t Is also found that the
plaintiff has shown no grant of the
waters Of the river other than such
as Injured to it from the fact that
the river flowed through the lands
of the Pueblo and of the City; also,
that of the waters conducted into
the city, there is surplus, which
the City Is selling to parties without
the City.


The action is au action to quiet
the title of the city to all the
waters of The river. The defend
ants do not distinctly disclaim as to
any of the waters of the river, but
they set up their right as riparian
proprietors, alleging that as such
they were entitled to a reasona BILE
proportion of the waters, and. that
two irligating heads constituted
such reasonable proportion, and
they rely upon the former recovery
as a def1nitive determination OF
their right to that amount of water.
The defendants title to that
amount of water was distinctly put
In issue In the former action, and
was tried and determined, and was
determined in their favor. The
record presents the question wheth-
er the finding. in that regard Is
sustained by the evidence; but 1t is
unnecessary at this time to inquire
into the source, nature or extent of
the right or title of the city to the
waters OF the river, for whatever
may be the facts in those respects,
the judgment In favor of the de.
PENDANTS must be construed only as
determination that as against the
city the defendants are entitled to
appropriate and use two "irrigating
heads" of the waters of the river.
The finding is, In our opinion, fully
sustained by the evidence, the most
material portions of which have
been recapitulated.


In that action the plaintiff sought
recovery on the distinct ground
of title, and claimed damages for
the diversion of the water, aud an
Injunction to restrain its further
diversion, on the ground of the ex-
elusive right in the plaintiff to use
and appropriate all the waters of
the river. The defendants based
their claim to divert and appropri-
ate the waters, not only on q denial
of the plaintiff's right, but also on
the grounds that they possess the
right as riparian proprietors and
had acquired the title by adverse
user or prescription. The Court
did not find what title or right in
or to the waters the plaintiff pos
sessed; but it distinctly found that
the defendants were entitled, as ri
parian proprietors, to the amount
OF water appropriated by them,
and that they had been In continu-
GUS adverse use and enjoyment of
the same for more than the period
of the statute of Limitations. In
ordinary controversies between
parties claiming only as riparian
proprietors on the same stream of
water, ajudgment determining that
at a given time the parties are en-.
titled to appropriate the waters in
certain proportion, is not necessar-
lily conclusive In subsequent ac.
tion, for the facts upon which the
determination as to the proportion
Of the waters to which the parties
are entitled may be materially diff.
ferelt at the second trial Tho