Gould v. Eaton

Harrison, J.

The facts involved in the judgment herein are set forth in the opinion given upon an appeal therefrom by the plaintiff. (Gould v. Eaton, 111 Cal. 639 ; 52 Am. St. Rep. 201 .) The present appeal is by the defendants from that portion of the judgment which enjoins them from diverting to lands not riparian to the creek any of the waters naturally flowing in its channel, and from preventing or interfering with the flow directly back into the stream from the mouth of the tunnel constructed by them of one and forty-three hundredths inches of water, measured under a four-inch pressure. The court found that this amount of water was abstracted and diverted from the channel of the stream by reason of the tunnel constructed by the defendants, and the appeal is directly from the judgment upon the judgment-roll without any bill of exceptions.

The finding by the court of the amount of water diverted by means of the tunnel cannot be questioned by reason of the statement therein of the mode by which this amount can be ascertained. The evidence before the court by which it determined that the loss could thus be ascertained is not before us, and it must be assumed that it was of a satisfactory character, and the *542 conclusion of the court thereon must be accepted by us as correct.

To the extent that the water diverted by the tunnel is taken from the stream, the defendants are in no different position than they would have been if Barker, the riparian owner from whom they received the right to construct the tunnel, had given them the right to lay a pipe from the stream and granted them the water that should flow through it. The only right in the riparian land which was granted to the defendants was “ to enter thereon to prospect for water, and to excavate a tunnel to develops the same at a place to be selected by them within thirty days from the date of their agreement, and the right of way over said land for the purpose of making said tunnel.” Under this agreement they selected a place for the tunnel about thirty feet west of the stream, and constructed it in a direction nearly parallel with the stream. The defendants are, therefore, in no respect riparian owners, nor are their rights in the water which flows from the tunnel in any respect those of a riparian owner. The grant from Barker gave them no right in the land which is adjacent to the stream, and they took by the contract no riparian rights in the waters of the stream, and no greater right to these waters than Barker could confer upon any other nonriparian owner.

The rights of a riparian owner are limited to the ordinary and reasonable use of the water which flows in the stream, and do not include a proprietorship in the corpus of the water. His right to the water is limited to its use for such as are termed ordinary pur poses—ad lavandum et ad potandum—or such other uses as are connected with the land bordering on the stream. It is not necessary here to determine the extent to which such uses may be carried, or the purposes to which the water may be applied. They do not in any case include the right as against an inferior proprietor to divert the water to non riparian lands. Each riparian owner io entitled to the natural flow of the stream *543 through his land, with the limitation", however, that the superior proprietor may take therefrom such an amount as he is entitled to for riparian purposes. The superior proprietor cannot, however, divert to nouriparian lands the water which he would have a right to use for riparian purposes, but which he does not in fact use. His riparian right is appurtenant to the land bordering on the stream, and does not give him the right to divert the water to lands which are not riparian to the stream, and, as he cannot exercise his right himself, he cannot as against an inferior proprietor confer it upon another. As against himself or his grantee he may contract for the diversion of the water to nonriparian lands (Gould v. Stafford, 91 Cal. 146 ; Yocco v. Conroy, 104 Cal. 468 ); but the rights of the inferior proprietor will not be affected by such contract. If he does not in fact use any of the water himself, the inferior proprietor has a right to the flow of the entire stream. (Stockport Water Works v. Potter, 3 Hurl. & C. 300; Ormerod v. Todmorden Mill Co., L. R. 11 Q. B. 155; Swindon Water Works Co. v. Wilts etc. Canal Co., L. R. 7 E. & I. App. Cas. 697.)

The plaintiff’s right to an injunction does not depend upon the amount of injury which he has received. Being a riparian owner, he has a right to the flow of the entire stream as against any diminution thereof by one who is not a riparian owner, and the claim of the defendants that they have a right to divert a portion of its flow authorizes him to invoke the aid of equity in order that this claim may not ripen into a right. (Moore v. Clear Lake Water Works, 68 Cal. 146 ; Stanford v. Felt, 71 Cal. 249 ; Swindon Water Works Co. v. Wilts etc. Canal Co., supra.)

That portion of the judgment which requires the defendants to permit this amount of water to flow back into the creek “in the manner in which the water from said tunnel was flowing back into said creek at the time of the commencement of the trial of this action” is not authorized. If the water which is diverted from *544 the creek is allowed to return to it before it reaches the land of the plaintiff, the manner in which it is returned is immaterial to him, and, if the defendants can at any time change the manner in which it at present is returned, with advantage to themselves, they should be allowed this privilege so long as the rights of the plaintiff are not impaired.

The judgment should be modified in another particular. The court finds that as the tunnel is now constructed and used it diverts the amount of one and forty-three hundredths inches of water from the stream, and will continue to divert this amount of water “under the conditions now existing.” The judgment, however, renders it incumbent on the defendants to permit one and forty-three hundredths inches of water to flow back into the stream under all circumstances, and independent of the conditions now existing. It should be modified by giving to either party leave, upon showing that these conditions have changed to an extent authorizing the interference of the court, or that the operation and use of the tunnel will justify it to apply for a corresponding change in the judgment.

The superior court is directed to modify its judgment in accordance with the foregoing opinion, and, as so modified, the judgment will stand affirmed.

Garoutte, J., and Van Fleet, J., concurred.

Hearing in Bank denied.