EDWIN SENIOR et al., Appellants, v. J. C. ANDERSON et al., Respondents, 115 Cal. 496

Haynes, C. Action to quiet title to a water right. The defendants had judgment, and the plaintiffs appeal therefrom, and also from an order denying a new trial. In 1883, J. D. Hines settled upon one hundred and sixty acres of public land through which a small mountain stream known as San Antonio creek flowed, and constructed a dam and ditch by which he diverted from said stream about seventy-nine inches of water, and discharged the same upon said land.

No notice of said appropriation is shown to have been made, and its purpose, and the quantity of water appropriated, can only be determined from its subsequent use. That a valid appropriation may be so made, see Wells v. Mantes, 99 Cal. 583. The defendants claim under said appropriation.

Edwin Senior, one of the plaintiffs, in 1886 settled upon one hundred and sixty acres of public land below the Hines place, through which said stream also ran, and on October 29, 1887, posted a notice claiming to appropriate fifty inches of. the water of said stream, measured under a four-inch pressure, and constructed a ditch to convey the same for use upon his said land. J. D. Hines died in December, 1886, and Alice Hines obtained a patent for the land occupied by J. D. Hines in his lifetime, October 25,1889, and Senior obtained a patent to his land October 30, 1890.

The other plaintiffs are vendees of portions of Senior’s land and water right. The Hines ranch above mentioned was conveyed by Alice Hines to E. S. and W. L. Hall, August 21, 1888J together with the water right appurtenant thereto, and on June 15, 1889, the Halls conveyed said water right but not the land to the Ojai Valley Water Company, a corporation. The persons named as defendants are the members of an unincorporated association, or partnership, composed of the stockholders of said corporation, to which association said corporation conveyed its water right, May 5, 1894.

The agreement by which the association was formed divides the interest acquired into one thousand shares, being the same number of shares issued by the corporation, and the said agreement fixed the number of shares to which each member of the association was entitled. The corporation was thereupon dissolved. The principal question is as to the sufficiency of the evidence to justify the sixteenth finding, which is as follows: “That J. D.

Hines settled upon certain lands riparian to the said San Antonio creek, and above the lands of the plaintiffs in this action,,in 1883, and all the water flowing in 4he said San Antonio creek to and upon the lands of the said J. D. Hines in the said year 1883, and ever since, in the ordinary stages of the water, was necessary for uses upon the said lands so occupied by the said J. D.

Hines for agricultural and domestic uses; and all of said water flowing in the said stream in ordinary stages, and to the amount of seventy-eight and seventy-seven one-hundredths inches, was diverted from the said stream by the said J. D. Hines and used upon the said lands until the death of the said J. D. Hines, and ever since.” Whatever water rights were acquired by Hines were acquired by appropriation. Senior’s appropriation having been made prior to the acquisition of title by Alice Hines, no riparian rights attached to Hines’ lands which could affect Senior’s appropriation.

Her patent was expressly made “subject to all accrued water rights”; and as the two appropriations above mentioned, whatever may be their respective quantities, equals or exceeds the entire flow of the stream during the irrigating season, the question of riparian rights does not arise in this controversy.

The evidence is quite clear that the capacity of the Hines ditch was practically the same in-1883 that it is now, and that during all the time since 1883 the water ran through it to its full capacity when there was sufficient water in the stream to fill it, and when there wag less that it was all diverted, except so much—a small quantity—as seeped through the dam by which the water was turned into the ditch. But that is by no means conclusive of the quantity of water appropriated, nor is it, without showing a useful purpose to which the water, or some of it, was applied, evidence of any appropriation.

The purpose of the diversion and the use of the water diverted are the general tests of a valid appropriation as well as of the quantity appropriated. None of the water diverted by the Hines ditch was used upon any other than the Hines land until after the conveyance of the water right by the Halls to the corporation, which was nearly two years after the appropriation by Senior. The extent of the Hines appropriation is therefore not enlarged by the subsequent use of the water by the corporation upon other lands, but must be determined by the use upon the lands for which the water was appropriated.

The quantity of land cultivated and irrigated by Hines and his successors until the time of the trial is uncertain; but that no greater quantity of land was cultivated upon the Hines ranch at any time than was under cultivation at the time of the trial is clear, while the preponderance of the testimony is that it was formerly much less. As to the quantity of land being irrigated upon the Hines ranch at the time of the trial, one of the defend, ants, W. L.

Hall, who is in charge of that property} testified that, at that time, there were “thirty-nine acres in trees; no alfalfa”; and that “there are about two hundred acres being irrigated from the same stream now outside of the old Hines ranch.” No witness put the quantity of land that is or has been irrigated upon the Hines ranch at more than forty to fifty acres. E. S, Hall, also a defendant, testified as follows: “I am son in law of Judge Hines, and took charge of the place after his death until August, 1888. When I took charge of it in 1887 the flumes and ditches were practically wliat they are now.

The ditch extended down past the house, and the water, after running off the Hines land, went down a little stream or ravine, but did not reach Senior’s land again, but would reach the creek again about three miles below, if it did not sink into the sand or earth. The ditch and flume was kept in use continuously as it was possible. Judge Hines intended to hold the water and keep it, and he irrigated tlie hills for that purpose. He got domestic water from another stream. I do not know how much was irrigated in 1887.

In the summer months all the -water was turned into our flume, and only seepage would go down to Mr. Senior’s flume.” A little later, at folios 331, 332, this witness repeated the foregoing statement in almost the. same words, including the statement that Hines “irrigated the hillsides for the purpose of holding the water.” Miguel Erro testified that he commenced to work for Judge Hines in 1883, and helped to construct the ditch and flume.

That the land was cultivated “ for alfalfa, for orange and lemon trees, and for barley.” “ It [the water] was taken north of the house, but afterwrard ran down the creek right by the house.....When I said, in 1883 when the water ran through this ditch and flume it passed again into the stream, I mean the little creek where the house is. The water may return to San Antonio creek, but it would be way down.” George Stewart testified that it was hard to estimate how much Judge Hines had under cultivation.

It was in patches; that he used to irrigate a great deal of it for pasturage; that he judged there were about fifty acres irrigated by Judge Hines altogether in 1885-86. Mr. E. S. Hall, the present occupant of the' Hines ranch, testified that it would take forty inches used all the time to irrigate the place properly; that “ this year” he had twenty-five inches and would have been glad to have had more. There was no evidence tending to show that any portion of the Hines ranch other than that now irrigated is capable of irrigation, or that any larger quantity of-water than that mentioned by E. S.

Hall is, or ever would be, required for the cultivation of all the irrigable land on that ranch. This fact, together with the further conceded fact that the water diverted by the Hines ditch is now used to irrigate from one hundred and eighty to two hundred acres of land outside of the Hines ranch, gives great force to the testimony of E.

S* Hall, whose relation to Judge Hines gave him ample opportunity to-know the facts, that he irrigated the hillsides for the purpose of holding the water, and that water was permitted to flow off in the little stream or ravine which connected with San Antonio creek some three miles below. This evidence clearly shows that the quantity of water claimed by defendants under the Hines appropriation largely exceeds the quantity put to an}7 useful purpose on the Hines ranch, and, therefore, exceeds the quantity actually appropriated.

While the quantity of water appropriated for use upon the Hines land is the measure of the quantity appropriated by Hines, we do not hold that the water so appropriated may not betused upon other lands; but the fact that other lands may be, or are, irrigated from the Hines ditch does not affect the quantity of water appropriated. In Atchison v. Peterson, 20 Wall. 514, Justice Field, delivering the opinion, said: “The right to water by prior appropriation is limited in every case in quantity and quality by the uses for which the appropriation is made.

A different use of the water subsequently does not affect the right; that is subject to the same limitations, whatever the use. The appropriation does not confer such an absolute right to the body of the water diverted that the owner can allow it, after its diversion, to run to waste and prevent others from using it for mining or other legitimate purposes.” (See also the California cases there cited, and Simmons v. Winters, 21 Or. 35; 28 Am. St. Rep. 727; Barnes v. Sabron, 10 Nev. 243; Hindman v.

Rizor, 21 Or. 112.) We do not hold that the Hines appropriation is limited by the quantity of water he could put to a useful purpose upon his land the first or second year, but to such quantity as he could put to a useful purpose upon his land within a reasonable time by the use of reasonable diligence. “ To entitle the defendant, however, to the benefit of such an appropriation, he should, within a reasonable time, apply the water to such beneficial use. As fast as he could reasonably put his homestead into cultivation, he is entitled to divert and use the water for that purpose.

The rule established in Simmons v. Winters, supra, is just and reasonable; but it is not intended that, because a prior appropriator is entitled to a given quantity of water necessary to irrigate the lands he intends to cultivate, he can suspend his improvements an unreasonable time, and then, by adding to the area of his cultivated land, be restored to his original intentional diversion, when' subsequent appropriators have acquired rights upon the stream.

The fact that he for an unreasonable time delays additional cultivation, should be construed into an abandonment of his original claim to divert a sufficient quantity to irrigate his whole tract, and his appropriation, after such unreasonable delay, should be confined to such necessary use as applied to the lands he had cultivated within a reasonable time.” (Cole v. Logan, 24 Or. 304. See, also, Simmons v. Winters, supra, and Barnes v.

Sabron, supra.) We think that the time elapsing after 1883 was ample to bring under cultivation all the land upon the Hines place intended for cultivation by the use of water, and the voluntary disposition by the present owner of the Hines land of so much of the water as is not now used thereon, for use upon the land of others, justifies the conclusion, upon the evidence before us, that the appropriation made by Hines should be restricted, as against the plaintiffs, to the quantity of water now reasonably necessary for the irrigation of the Hines land under cultivation when this action was commenced.

We therefore conclude that said finding is not justified by the evidence, though it is immaterial to the plaintiffs where said quantity of water is used, and that the use of the water upon other lands is therefore a false quailtity in the problem as to the quantity appropriated by Hines, and whether that quantity has been increased must depend upon the question whether the right to a larger quantity has been acquired by an adverse use for the period of five years, the defense of the statute of limitations having been pleaded by the defendants.

The diversion through the Hines ditch of water not necessary for a useful purpose, for any length of time, would not give a right as against the plaintiffs, and, therefore, the application of the water to a beneficial purpose upon other lands by the defendants, or their predecessor in interest, the Ojai Valley Water Company, must mark the beginning of the adverse use. These other lands never belonged to Hines, or to any owner of the Hines land, and the evidence is without conflict that no water was used except upon the Hines ranch until after the conveyance of the water right by the Halls to said corporation.

That conveyance was made June 15, 1889, and the complaint in this action was filed August 4, 1894. At what date the use of the water by the corporation upon the outside lands was commenced nowhere appears. Unless an adverse use commenced on or before August 4, 1889, no right was acquired by adverse user.

It may be proper to add, in view of another trial, that the mere construction of ditches, or the laying of pipes for the purpose of using the water upon other lands outside of the Hines ranch, did not constitute such adverse user as would set the statute in motion, since no right could be acquired adversely to Senior otherwise than by the actual use of the water.

Besides, whatever right to the water Hines or his successors in interest in the Hines ranch acquired—and, as we have seen, some right was acquired—was conveyed by the Halls to the corporation; there was, therefore, some water which the corporation had the right to conduct to said outside lands, and the construction of ditches, therefore, could not he notice to Senior of any adverse claim to the water, for, in the absence of the statutory notice, an appropriation of water can only be made by its actual diversion and use.

The Halls, in their conveyance to the corporation, reserved all riparian rights attaching to their lands, but did not reserve any right to the water acquired under the Hines appropriation; and all the right they have since had to water upon the Hines ranch was acquired by them as stockholders in the corporation, or as shareholders in the association known as the San Antonio Water Company.

Indeed, at the time of their conveyance of the water right to the corporation, no- riparian rights existed, the title to said lands being still in the United States; and no subsequent riparian rights could exist, affecting either the Hines or the Senior appropriation, such prior accrued rights being expressly reserved in the patents.

Plaintiffs further alleged in their complaint that a certain compromise agreement was made between them and the said corporation, by which Senior was to convey to the corporation whatever rights he had as an appropriator and riparian proprietor, and turn into the flume of the corporation all the water coming into his ditch, the corporation, on its part, to turn out to Senior and his grantees one-tenth of all the water in their flume, or which might thereafter, by development or otherwise, be caused to flow therein, and would also secure to plaintiffs the right of way for pipes or ditches to convey said water to plaintiffs’ land across the intervening private lands; and plaintiffs, while asserting their rights as riparian proprietors, and also under Senior’s appropriation, prayed for a specific performance of said compromise agreement.

A proposition covering the ground above stated was made in a letter written by Mr. Hall, then president of the corporation, to Mr. Senior, but it was qualified so as to express what he was personally willing to do, and would advise the corporation to accept. A connection of the Senior ditch was in fact made in accordance with said proposition, and Hall .turned out from the flume of the corporation approximately that proportion of the water for Senior’s use. This was about April, 1892, and the water so turned out continued to flow to Senior from that time until the time of the trial.

Senior and his co-plaintiffs prepared and executed a deed for the purpose of consummating this compromise, and deeds were prepared at the instance of Hall for the conveyance of said right of way to the plaintiffs, but no deeds were ever delivered, though plaintiffs notified Hall that their deed was executed and ready for delivery.

A large part of the evidence in the case was directed to this question, from, which it appeared that the change was made, and plaintiff’s use of the water from defendant’s flume for two years, was with the knowledge of most, if not all, of the directors and stockholders of the corporation and its successor, the San Antonio Water Company. Mr. Hall testified that the connection was made with the company’s flume for experimental purposes, and the matter was not consummated because the corporation would not agree to the compromise, and the court so found.

Touching this finding, which is also attacked by appellants, it need only be said that while much of the evidence seems wholly inconsistent with defendant’s claim that it was not agreed to, the conflict in the evidence would not justify us in disturbing the finding, especially in view of the well-settled doctrine that to justify the specific performance of a contract, the fact of the existence of the contract must clearly appear, and that where part performance of an oral contract is relied upon, such part .performance must be clearly attributable to the contract sought to be enforced.

Upon plaintiffs being notified to disconnect their flume from that of the defendant, this action was commenced. The complaint alleged that the individuals named as defendants are copartners under the name of the San Antonio Water Company, and the court found that the defendants are the owners of the water rights formerly pertaining to the Ojai Valley Water Company, but not as copartners; and this finding is also attacked. The question whether the defendants are copartners, or are a voluntary association, or whether they hold whatever rights they may have as individuals, is immaterial.

They claim from the same source, and the water used by them is diverted by the same ditch, and their claims of right, whether several or united in the use of the water, affect the right of the plaintiffs, and they are therefore, even if their rights or claims are asserted as individuals, properly joined as parties defendant in the action to quiet the title of the plaintiffs. Whether the action might have been prosecuted against the association without naming the persons composing it, under

section 388 of the Code of Civil Procedure, need not be considered. The judgment and order appealed from should be reversed and a new trial granted. Belcher, C., and Britt, C., concurred. For the reasons given in the foregoing opinion the judgment and order appealed from are reversed and a new trial granted. Temple, J., Henshaw, J., Harrison, J., Van Fleet, J.