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District Court of Appeal, Third District, California.


Civ. 6385

Decided: March 23, 1940

Laurence B. Martin, of Los Angeles, for appellant. Paul F. Garber, of Monrovia, W.H. Anderson and A.G. Ritter, both of Los Angeles, and Walter F. Dunn, of Monrovia, for respondents.

The above-entitled actions were consolidated for trial and are also consolidated upon this appeal. The parties in each are identical. The judgment in each case was that plaintiff take nothing, and certain rights in the real property involved were granted to defendants, City of Monrovia, and Bradbury Estate Company, and L.L. Bradbury Company. The appeal is taken by plaintiff from the judgment in each case.

The complaint in action No. 364,950 alleges that plaintiff is the owner of the northeast quarter of section 13, township 1 north, range 11 west, S.B.M., and that he has a riparian right to water flowing through said land, to the extent of ten miner's inches. He alleges that within five years last past defendant, City of Monrovia, diverted the said water at a point above his land, and took all of the said waters away in a pipe line, so that none of the stream flowed through his land; that ten inches of water is necessary for the development and use of said real property, and that the other defendants named claim an interest in the waters of said stream. Plaintiff prays that he be adjudged owner of the right to use ten miner's inches of the waters of said stream; that defendants be enjoined from interfering with the waters of said stream, to the extent that he will be deprived of ten inches of water; that his title to said real property be quieted; and that he have general relief.

The answer of the city sets up the defense of a prescriptive right to all of the waters of said stream, and also alleges that all of said waters have been dedicated by it to a public use. It alleges that it is the owner of an easement and right of way for a pipe line, together with necessary trails and roads for the repair and maintenance of said pipe line. Numerous other defenses are set up, but it is not necessary to detail them. Defendant prays that it be adjudged to be the owner of all of the waters of said stream, and of the easement for the pipe line.

The answers of defendants L.L. Bradbury Company and Bradbury Estate Company, sets up that they are the owners of 10/11 of 1/5 of the waters mentioned by plaintiff. They also allege that the action is barred by the provisions of sections 318, 319 of the Code of Civil Procedure.

In the second action, No. 365,253, plaintiff seeks to quiet title to one-quarter of the waters of Maple canyon, and for an injunction to restrain the diversion of more than that amount of water. The defenses are practically the same as those set up in the first action.

The City of Monrovia has a population in excess of ten thousand. It owns lands above the property of plaintiff, consisting of over thirteen hundred acres in the drainage area here involved.

The Bradburys (defendants) own some six hundred sixty-six acres of land some two miles away from the point of diversion at the pipe line of the city. Their lands are not riparian to the stream flowing through plaintiff's land, or any tributary thereof.

Appellant's land consists of about one hundred sixty acres, and is contiguous and riparian to what is known as “Sawpit Stream”. The waters of Sawpit stream rise in, and have their source, in various watersheds in the San Gabriel mountains, being fed by springs and rainfall in the mountains. All of the waters herein involved flow in well-defined channels. The streams in Sycamore, Twin Springs and Vassar canyons all flow in a generally southwesterly direction to, and conjoin with Sawpit canyon. The same thereafter extend across appellant's land, and at the point shown on the map, unite with the Maple canyon stream, which flows almost directly south of the junction. The combined waters of said canyons, as the same flow into Sawpit stream, Sawpit canyon, are generally known as the “Sawpit Stream or Wash”. Action No. 364,950 involved all these waters. In action No. 365,253, appellant sought to quiet his title to a one-quarter interest in the waters developed and flowing on the southeast quarter of section 12. These waters, of course, flow down Maple canyon, and as indicated, conjoin with Sawpit stream. The waters of Maple canyon, that is to say the waters involved in action No. 365,253, will be hereinafter sometimes referred to as the “Maple Stream”. The waters involved in action No. 364,950, being the combined flow of all of Sawpit stream as the same extends over appellant's lands, and its tributaries shown above appellant's land on the map, sometimes referred to as the “East Fork Sawpit Stream”. The East Fork Sawpit stream flows in a well-defined channel down and through appellant's land, and thereafter down to a flood-control reservoir and dam located partially on the westerly boundary of appellant's land, and then in a southerly direction to the San Gabriel river. The flood-control dam and reservoir were completed by the county of Los Angeles in July, 1926, and have been in operation since that date.

The flow of water in the stream which traverses plaintiff's land is intermittent in character. This is clearly indicated by the records of Los Angeles Flood Control District, admitted in evidence, and covering a period commencing March, 1928, and ending September 30, 1935. The measurement is taken at a point on plaintiff's land where the stream in controversy enters the reservoir of said district. For instance, in 1928, there was only a trace of inflow, too small to measure, during the months of May and June, while there was no inflow whatever in the months of July, August and September. The other years are very much the same. During the other months the flow is at times higher, depending upon the amount of precipitation. The city contends that it has diverted all the waters of the drainage area, above the lands of plaintiff, for over forty years prior to the commencement of the action.

During the nineties the city developed the waters here involved by means of a system of catchbasins, tunnels, intakes, and pipe lines installed in the first instance in the mountains above appellant's land on land owned by the city. The waters were collected near the various springs shown on the map, by means of small catchbasins, tunnels, and other intake works, and a system of pipe lines. The pipe line extending northeasterly across appellant's land and along the East Fork Sawpit stream, is over three thousand feet in length, and the pipe line extending down through Maple canyon runs over appellant's land for about one thousand feet to its point of junction with the East Fork Sawpit stream pipe line. These pipe lines extend practically adjacent to the various canyons and streams involved, and conjoin at a point near the westerly boundary of appellant's land as shown on the map. The water thus collected was and is then conveyed through a single pipe line extending in a general southwesterly direction through the flood-control dam, and finally southerly to a point known as the “5–Point Weir Box” (hereinafter sometimes referred to as the “5 Point Weir”). At the 5 point weir, a division of the water collected in the pipe line is made between the city and Bradbury interests, the latter receiving 10/11 of 1/5 of the waters, and the city receiving the balance. All abstractions, diversions and other development of the water herein involved were and are made by the city alone, above the 5 point weir and above the land owned by appellant. The water distributed by the city at the 5 point weir is, of course, conducted by it to various reservoirs owned by the city below the 5 point weir, where the water is stored for subsequent use in the incorporated area of the city. The water distributed at the 5 point weir to the Bradbury interests was and is conveyed by pipe line to the lands of the Bradbury interests. The city, of course, claims a beneficial and necessary use of balance of the waters. The exact quantity of water, in terms of water measurement, appropriated by the city at this point, or at any other point was never established or determined by the lower court. The quantity of water distributed to the Bradbury interests below the 5 point weir was likewise never determined or established by the lower court, except that the court found that the city was entitled to all of the water included in said system, “after deducting 10/11 of 1/5 thereof” which was found to be the property of defendants Bradburys.

As we have seen, the city has no storage facilities whatever above the lands of plaintiff. All water is picked up in small “catch basins” at the head of each pipe line, and diverted directly without storage.

The complaint in the first action was filed November 1, 1933, and in the second action on November 8, 1933. Plaintiff acquired title to his real property in 1917.

It would extend this opinion to an unreasonable length if we were to discuss at length all of the points relied upon by appellant. Those omitted here may be considered either as having no merit whatever, or as necessarily decided in connection with the disposition of other related questions. We might point out, however, that the rights of defendants in the real property of plaintiff, if they exist at all, must, under the record here, be founded upon prescription alone. Respondents' brief gives no summary of the facts, neither does it set forth defendants' own position on any of the questions raised by appellant. Respondents devote their entire time to answering appellant, and in casting personal aspersions at his counsel on appeal. This may all be very interesting to the parties involved, but this court finds such personalities to be of little assistance in solving the questions presented.

It is first contended that the court erred in finding that the city had a prescriptive right to all of the waters of Sawpit stream, except 5/11 of an undivided 1/5 thereof. We are of the opinion that there is ample evidence to support such findings. The evidence is overwhelming to the effect that the city has used all the waters of said drainage area, adversely, for fifty years, or thereabouts. Such waters, during said time, have been abstracted and diverted by means of pipe lines, and thereafter devoted to a public use. It might be added that the expression “all the waters”, as used in this opinion, means the balance of the water remaining after the delivery of 5/11 of 1/5 thereof to defendants, Bradbury. The rule is that: “A continuous adverse diversion and beneficial use of a given quantity [of water] for a single period of five years establishes the title to that quantity. *” E. Clemens Horst Co. v. Tarr Mining Co., 174 Cal. 430–439, 163 P. 492, 496. Appellants strongly urge that the findings are too indefinite, and that the trial court should have found, in terms of miner's inches or cubic feet per second or other accepted and recognized terms, the exact amount of water to which respondents have acquired title by adverse user. It must be conceded that the method suggested is far more satisfactory. Where, however, the court finds that respondents are entitled to all of the water of the stream, or all the waters up to the capacity of certain diversion works, it would appear to be definite enough for all purposes.

It is quite clear that by the use of the expression “all the water” (of Sawpit stream), the court did not intend to include “excess waters”, but only such water as can be collected by the several catch basins and intake works at the head of each pipe line. As to such waters as escape over or flow past such diversion points, the respondents have established no title whatever. The findings should be modified to establish this situation with accuracy and precision. Giving full effect to the rights accorded respondents, they would have no right to any waters flowing at any time in the stream through the land of plaintiff. Plaintiff, however, could acquire no rights in such voluntary releases as respondents might make for the purpose of properly maintaining and repairing their water system, or in such waters as are released down the stream at times when they are unfit for municipal use.

Appellant contends that, although the city may have acquired title to the water by adverse possession, such title was lost by failure to make a beneficial use thereof for a period of three years. (Citing, Gen.Laws, Act 9091, sec. 20a.) There is sufficient evidence in the record to support an implied finding that the city at no time ceased to make a beneficial use of all of such waters. One of the witnesses, Packer, testified that, for a number of years—from 1927 to 1933—the intakes of the city “took 100% of the water available in the mountains”. Another witness, Hannah, testified that he visited all the intakes from 1908 to 1924, about once a month, for the purpose of cleaning them. He never saw any water escaping.

It is contended that the city never used all of said waters because their pipe line and other parts of the system were in such a state of disrepair that considerable loss through leakage resulted. The evidence on this point is in slight conflict, but the witnesses mentioned above, and others, testified that constant repairs were made, and that any leakage was in such a small amount as to be negligible. There is sufficient evidence to support an implied finding that there was no loss or abandonment of any of the water.

It is contended that the finding that defendant city has an easement by prescription for a right of way for a pipe line over the property of plaintiff, is not supported by the evidence, and that whatever prescription title the city may have had was wiped out by a substantial and material alteration of the easement in 1930. During that year, according to the undisputed evidence, the water system involved here was overhauled by the city at considerable expense. On the land of plaintiff, the main pipe line was renewed for a distance of some fifty feet. New pipe was used, and it was laid about five feet from the old pipe line. The branch pipe line from Maple canyon joins the main pipe line on plaintiff's property. This branch line was renewed with the substitution of an iron pipe for concrete pipe, which was laid by the side of the old pipe. We are of the opinion that such acts constituted a material alteration of the easement which the evidence shows the city had acquired prior to 1930, and that any easement which the city may have previously acquired was thereby destroyed and extinguished. The general rule governing this question is stated as follows in North Fork Water Co. v. Edwards, 121 Cal. 662, 54 P. 69, 70: “The character and extent of a way claimed by prescription are fixed and determined by the user under which it is gained. Washb.Easem. p. 135. It was held in Capers v. McKee, 1 Strob. 164, that the owner by prescription of a private way over another's land has no right to cut ditches for the improvement of his way without the consent of the owner of the soil, unless he has acquired such right, also, by prescriptive use. And, where a grant is presumed from the use, then the use must define the extent of what is presumed to have been granted. Jones, Easem. §§ 818, 819.”

In that case it was held that one having a prescriptive right to maintain a flume has no right to substitute a ditch for the flume, and that such act would amount to a change in the nature of the easement. It has been held that a substantial change, shifting of the course of a road, will destroy an easement which previously existed. Matthiessen v. Grand, 92 Cal.App. 504, 268 P. 675. “Prescriptive rights are stricti juris and should not be extended beyond the actual user”. Scott v. Fruit Growers Supply Co., 202 Cal. 47, 258 P. 1095, 1097. The case of Vestal v. Young, 147 Cal. 715, 82 P. 381, is also in point. It clearly appears that the law does not contemplate the acquisition by prescription of a way over another's land which shifts from one place to another. The previous location of the right of way for the pipe line had been as definitely and finally fixed by user as it would have been had the metes and bounds been set forth in a deed. Any material shifting or deviation of such pipe line would be in the nature of a trespass. Here, the new pipe line was laid at least five feet from the old one. “It was upon the property of appellant, over which respondents had no right whatever, and the principle is the same as if the new line had been hundreds of feet away.” Felsenthal v. Warring, 40 Cal.App. 119, 180 P. 67, 70. The same rule holds in respect to the change of the method of conveying water. The substitution of a pipe line for an open ditch is such a change in the manner of the enjoyment of the easement as to terminate all rights which had previously been acquired in respect to an easement for the ditch. Allen v. San Jose Land & Water Co., 92 Cal. 138, 28 P. 215, 15 L.R.A. 93.

The trial court found that the city had acquired rights of way for trails over the land. The location of such trails is set forth in the pleadings and findings by a description based upon a survey. It is contended by appellant that the finding of adverse user in respect to such trails is not supported by the evidence. We find the contention to be without merit. Such trails, it can be reasonably inferred from the evidence, were used adversely by the city for more than five years in the construction, maintenance and repair of the water system in question. It is also contended that the width of such right of way is excessive, and not supported by any evidence. This question was one which the trial court, after hearing the evidence and viewing the premises, should properly determine, and we believe the evidence sufficient.

Although, as we have indicated, the evidence will not support a finding that defendant city had a right of way for the pipe line over the land of plaintiff, this will not affect the judgment. The facts are undisputed on the question, and the court found that the city had appropriated and was using the right of way (as altered in 1930), and that it was using the pipe lines which were altered in character in 1930. In other words, a public use had intervened. The facts bring the case clearly within the rule laid down in Gurnsey v. Northern Cal. Power Co., 160 Cal. 699, 117 P. 906, 36 L.R.A., N.S., 185. By his inaction, plaintiff permitted the city to make the expenditures involved in the reconstruction and re-location of the pipe lines in 1930, and he is deemed to have waived all other remedies which he may have invoked, save that of an action for compensation. It is urged by plaintiff that he should have been allowed damages. It appears, however, that no cause of action for damages was alleged, or even attempted to be stated, nor was any proof of damage made at the trial. A separate action for damages might be proper, but certainly no such issues were presented here. The judgment, as applied to the right of the city to use the waters, and in respect to the amount of water actually diverted and put to a municipal or public use, is also supported by the findings under the same rule which we have applied to the right of way for the pipe line—a public use has intervened. The same rule is also applicable to the right of ways actually used by the city.

Turning to the other defendants, the Bradbury Estate Company and Bradbury Company (designated as the “Bradbury Interests”), it is contended that the evidence is insufficient to support a finding to the effect that such defendants are the owners of 10/11 of 1/5 of the waters collected and diverted by the city.

It appears that in the year 1900, the city and the Bradbury interests entered into an agreement respecting a division of the water flowing in the main pipe line of the city, at some distance below the land of plaintiff. Such contract, after reciting that there was some dispute between the parties in respect to such water, provided that it should be divided in the proportion of 1/5 to the Bradbury interests and 4/5 to the city. Since that date the evidence shows that the Bradbury interests have been taking such water and using it to irrigate their lands some two miles away and outside the limits of the city. The contract further provides that the city “shall have the sole management and control of all of the waters of said Sawpit canyon and of the conduits and pipe lines through which the same are conducted, and the canyons and sources tributary thereto”. Considering the contract as a whole, it was quite clearly the intent of the parties that the city should act as the agent of the Bradbury interests in the matter of the appropriation, collection, diversion and delivery of such waters to the point where they were divided. “It is not necessary that the person claiming title by adverse possession should have been in personal occupation of the land. Possession by an agent or by a tenant under him inures to his benefit and satisfies the requirements of the statute of limitations.” 2 C.J., p. 73, § 48. By analogy, the same rule would apply to the acquisition of a prescriptive title to the use of the waters of a stream. The act of the agent is the act of his principal. The evidence shows without dispute that the Bradbury interests had diverted and put their share of the water to a beneficial use over forty years prior to the commencement of the action, and that such diversion and use had continued without interruption ever since. The evidence shows that such user was adverse to plaintiff for more than five years preceding the commencement of the action. Plaintiff testified that he first became familiar with the pipe line across his land in 1922, and that he had become familiar with said land generally in 1916. The diversion point in the pipe line for the share of the Bradbury interests was distant about one mile below his land. The contract with the city was authorized by a resolution of the city, and was therefore a matter of public record. Under such circumstances we are of the opinion that the court was fully justified in finding that the Bradbury interests have used the amount of water claimed by them adversely for over a period of five years, and that they therefore have acquired a prescriptive right to the use of such waters.

It is urged by appellant that the Bradbury interests take their water out of the stream at a point below his lands, and therefore, as against his riparian rights, no prescriptive right can be acquired by them. This is the general rule, but the facts are that the water is actually abstracted from the stream at points above plaintiff's land. The rule is not applicable.

Appellant contends that there should have been some adjudication in respect to his riparian rights to the surplus waters of the drainage area. It appears that during the annual rainy season there is a considerable flow of water through plaintiff's land. This flow is what is left after the city has abstracted its entitlement under its prescriptive right. That riparian rights attach to such waters, there can be no doubt. Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81, 252 P. 607. The court should have found the amount of such surplus water that plaintiff could have put to a reasonable and beneficial use upon his property. The facts are undisputed. There are fifty acres of land which can be cultivated, and which require one miner's inch of water to irrigate each five acres thereof. In other words, plaintiff can make a beneficial and reasonable use of ten miner's inches of water. The finding that only ten acres of land are suitable for cultivation has no support in the evidence. The findings will be modified to conform to the undisputed facts stated.

The judgment was that plaintiff take nothing. This was erroneous. Plaintiff was entitled to an adjudication of all his riparian rights, including such rights in respect to the waters of the stream which would flow through his property after defendants had exhausted their prior right. Since the adoption of section 3, article XIV of our Constitution, it is the rule that the trial court must find expressly the quantity of water reasonably required by the riparian owner. Tulare Irr. Dist. v. Lindsay–Strathmore Irr. Dist. 205 Cal. 6, 269 P. 525. The city's diversion points are all above the property of plaintiff. During the summer months, and occasionally in other months, there is no water whatever flowing in the stream. The city, at those times, takes all of the water. Plaintiff is clearly entitled, as a riparian owner, to use such waters, or a portion thereof, as flow past the city intakes and down through his property. This would not apply to such water as is voluntarily released by the city on occasions when the water is unfit for municipal use. The court states several times in the findings that it makes no adjudication of the rights of “surplus waters”. That finding should be stricken out, and the judgment amended so that it will adjudicate such rights. The findings, as so amended, will support such amended judgment.

While we have stated that the judgment may be supported also by the finding that a public use had intervened, this obviously has no reference to the rights asserted by the Bradbury interests, as these defendants cannot invoke that doctrine, but must rely wholly upon their prescriptive right. We might also add that although, as to the city, the finding would support the judgment, the modification of the findings referred to would still have to be made. The extent of the right and taking would have to be more definitely fixed, and the riparian rights of plaintiff would still have to be adjudicated.

The second action is one to quiet title to a one-fourth interest in those waters which originate in, or flow through the east half of the southeast quarter of section 12, township 1 north, range 11 west, S.B.M. That land adjoins plaintiff's property on the north, and the water-way through it is known as “Maple Canyon”. Such waters as flow down that canyon flow into Sawpit canyon creek, and through plaintiff's land. The waters of Maple canyon form part of the drainage area involved in the first action. What we have said in respect to the latter action is equally applicable to this action. The answers, findings and judgment are substantially the same in each case. We see no reason for discussing the second case further.

We do not deem it necessary to order a retrial of the issues involved. The ends of justice can be best subserved by ordering a modification of the findings, conclusions of law, and judgment.

It is therefore ordered that the judgment in each action be reversed, and that the trial court enter findings and judgment in accordance with this opinion. Each party will pay his own costs on appeal.

Mr. Justice TUTTLE delivered the opinion of the court.

We concur: PULLEN, P.J.; THOMPSON, J.

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