J. H. STUFFLEBEEM, Respondent, v. MARY ADELSBACH et al., Appellants, 135 Cal. 221

HAYNES, C. This suit was brought to enjoin the defendants from interfering with or preventing the plaintiff from opening, cleaning out, and using a certain ditch over lands of the defendants, for the purpose of conveying water to the lands of the plaintiff. The court made findings and entered judgment for the plaintiff, and the defendants appeal therefrom and from an order denying a new trial. The findings are," in substance, that plaintiff and his grantors have for more than twenty-five years been the owners of the north half of the northwest quarter of

section 14, in township Í9 south, range 24 east, Mount Diablo base and meridian ; that about the year 1862, one Peter Steinman, then the ■owner of said land above described, constructed a ditch along the south side of the north half of the northeast quarter of said section, for the purpose of conveying water to his said land, for the purposes of irrigation and other useful purposes, and from the time of its construction until March, 1894, said ditch was used for such purpose by the plaintiff and his grantors and predecessors in interest, openly, continuously, uninterruptedly, and' adversely, under a claim of title exclusive of any other right; that in the month of March, 1894, the plaintiff entered into a verbal agreement with one W.

A. Freeman, that he and the defendant Mary Adelsbach should fill in said ditch where it crosses the northeast quarter of said

section 14, upon the consideration that the said Freeman should convey to the plaintiff a right of way for a ditch across the south half of said northeast quarter, and thereupon said Freeman and defendant Mary Adelsbach caused said ditch to be filled in where it crossed said northeast quarter; that said Freeman has not, nor has any person for him, or for the defendants, conveyed to plaintiff said or any right of way for said ditch across said land; that on or about July 21, 1897, the plaintiff entered upon the land where the ditch had formerly been, and attempted to clean out the ditch, but was prevented from doing so by the defendants Mary and John Adelsbach and Ralph and Frank Hess, who, by force and intimidation, compelled plaintiff to discontinue work in cleaning out or opening said ditch; that plaintiff had not abandoned the ditch, or his right to use it, and that it is necessary for the plaintiff to have it cleaned out and opened, for the purpose of irrigating his land; and that it is not true that plaintiff had not the right to use the ditch, except by a lease or permission from defendants.

Appellants’ contention is, that the findings are not justified by the evidence. Such of their specifications as are discussed in their brief will be considered. 1. It is contended that plaintiff is not the real party in interest; that prior to the commencement of the action he conveyed his land to Rachel D. Bashore. Upon cross-examination the plaintiff testified that he was not the owner of the land described in the complaint at the time of the trial; that he conveyed it to Mrs. Bashore in November, 1899. The action was commenced October 25, 1899.

We are not referred to any evidence contradicting this statement, nor do we find any. It was not necessary to substitute the purchaser as plaintiff. (Code Civ. Proc., sec. 385.) 2. It is not material- whether the ditch was constructed on the south line of the north half of the northeast quarter or “several feet south of the line.” If the plaintiff has the right to have the ditch reopened, his right relates to the line of the ditch—the same ditch formerly used, and therefore of the same size and capacity; or, in other words, when cleaned out it will be the same ditch. 3.

It is contended by appellants that Bashore and Stufflebeem used said ditch in subordination to defendant Mary Adelsbach, and under leases both written and oral. It is not disputed that Steinman constructed the ditch. Defendants say it was constructed in 1876, while plaintiff fixes an earlier date. Peter Adelsbach, one of the defendants, a son of Mary Adelsbach, testified that he had known the ditch since 1881, and that they did not claim the land or the ditch after the new survey was made. The date of that survey is said to have been 1887 or 1888.

A lease was put in evidence made by Mary Adelsbach in May, 1885, prior to said survey, to Mrs. Bashore, in consideration of one dollar, granting the right to run water through it until October of that year. Mrs. Bashore purchased the Steinman land in the spring of 1885, and explained that she did not then know that she had a right to the ditch, and it does not appear that her right to use the ditch was afterwards questioned; but it does appear that she and her successors in interest, including the plaintiff, did use the ditch from that time until it was closed in 1894, without question as to their right. 4.

It is 'contended by appellants that plaintiff abandoned the ditch more than five years before the commencement of this action. The circumstances under which the ditch was filled up by Freeman and the Adelsbachs has been stated. That plaintiff did not intend to abandon the right to have a ditch to his-land is clear. From the point where it crossed the west line of the east half of the northeast quarter it was never filled up.

The plaintiff testified that he consented with Freeman to the filling of the ditch, upon the condition that he would connect above the headgate, at the Adelsbachs’ southeast comer, and make a ditch around the south side of the lane, and give him a deed to it, which he has not done; that Freeman went to work filling in the old ditch, and he stopped him, but he afterwards finished filling without plaintiff’s knowledge; that he had been trying for years to get him to make the ditch, but he did not.

This agreement was made in March, 1894, and in July, 1897, plaintiff attempted to open the old ditch, but was prevented by force and intimidation. I think the evidence fully justifies the finding that plaintiff did not abandon his right to the ditch, and that his right was not barred by the statute, nor lost by adverse possession. 5. It is said that plaintiff has been using other ditches, by which he obtained water, at the same place where the old ditch entered his land, one of which was taken out of the main ditch only three hundred feet below where the old ditch was taken out.

It does not appear, however, that he had acquired any ownership of these ditches, or any permanent right to use them, nor that his use was adverse; for if it was merely permissive it could not ripen into a title. No other points are noticed in appellants’ brief. I advise that the judgment and order appealed from be affirmed. Smith, C., and Cooper, C., concurred. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. Harrison, J., Garoutte, J., Van Dyke, J.