HANNAH v. POGUE

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District Court of Appeal, Fourth District, California.

HANNAH v. POGUE.

POGUE ET AL. v. HANNAH ET AL.

HANNAH v. POGUE ET AL. (TWO CASES).

Civ. 3062.

Decided: June 14, 1943

McFadzean & Crowe, of Visalia, for appellants. Conley, Conley & Conley, of Fresno, for respondent Hannah. Calkins, Hall, Linforth & Conard, of San Francisco, for respondent Regents of the University of California.

This appeal resulted from the judgments of the trial court in three out of four cases which were consolidated for the purposes of trial. The evidence which was offered and received in connection with the four cases was also considered by the trial court in connection with an order requiring the defendant Pogue to show cause why he should not be punished for contempt. The one case which is not included in this appeal was decided favorably to the defendants Pogue and Smith by the trial court, as were the contempt proceedings. No appeal has been taken from the two last–mentioned matters.

Plaintiff and respondent Hannah owned, in addition to other lands, practically all of section 7 of certain lands in Tulare County. Her property also included about 32 acres in section 18. The above–mentioned property was first acquired by plaintiff's husband in 1917. Upon the death of Mr. Hannah in June, 1925, the plaintiff became the owner of all of the real property here involved. That property was encumbered by a mortgage in favor of the defendant the Regents of the University of California. The Kaweah River traversed in a southwesterly direction through section 7 of plaintiff's property. Defendant Smith, for many years, owned ranch property south and west of section 7 above mentioned. Defendant Pogue purchased that property from Smith in 1928 or 1929 under an executory contract of sale. About 1860, apparently by the consent of the then owner, a dam was constructed across the Kaweah River in section 7 near the easterly line thereof on property now owned by plaintiff and a diversion ditch, called the Hamilton Ditch, was at the same time constructed. This ditch led from the south end of the dam and followed a meandering course in a general southwesterly direction across plaintiff's property to property owned by the predecessors of Smith, which is now being purchased by Pogue. This prescriptive right is not disputed. The contract of sale included these rights. Defendant Pogue, in 1937, purchased from the defendant California Western States Life Insurance Company, under an executory contract of sale, practically all of section 8 which lies immediately east of plaintiff's property described as section 7.

At the time Smith first became acquainted with the Hamilton Ditch a rock dam was maintained at about right angles to and across the Kaweah River near the point where that ditch takes out of the river for the purpose of diverting water from the river into the head of the ditch. In 1920, defendant Smith rebuilt the dam out of cement. At that time section 7 was owned by plaintiff's husband, and apparently this work was done with his consent and approbation. Because of the sandy character of the bed of the Kaweah River at the site of the dam, the cement dam sank down into the river, the same as its rock predecessors, and the defendant Smith built a second cement dam right on top of it, and then built still another dam on top of that one, due to their settling down in the sand to the level of the river bed.

It is necessary to cross the property of the plaintiff Hannah in order to gain access to any portion of the Hamilton ditch which is located thereon, and to maintain and repair the dam. The plaintiff testified that defendant Smith, for many years, entered her property and crossed the same from west to east for the purpose of making repairs to the dam and ditch. The exact routes followed by Smith in maintaining the dam and repairing the ditch are not easily described. They will be hereinafter discussed at greater length.

Following his purchase of the Hamilton Ditch and the real property served thereby, Pogue continued to use the roadways or rights of way employed by Smith for the purpose of maintaining and repairing the dam and ditch. In 1933 Pogue rebuilt the headgate for the old wooden structure which had previously been used. About that time difficulties arose between plaintiff and Pogue, mainly over a lock which was placed by Pogue on the control gate of the new structure. Considerable correspondence ensued between the parties. In February, 1936, which was the year immediately following the exchange of the correspondence above referred to, there were three distinctly high water stages in the flow of the Kaweah River and the waters of that river broke through and went around the north end of the dam which diverted water into the head of the Hamilton Ditch. It thereupon became necessary for Pogue to go upon the property of the plaintiff with men, teams, equipment and materials for the purpose of repairing the dam. Since the damage was done to the north end of the dam, it could only be repaired by going on that portion of the property of the plaintiff lying north of the Kaweah River. Defendant called the plaintiff by telephone to ascertain what route she would prefer to have him use in entering her property for the purpose of repairing the dam. She refused to allow him to enter her property on the north side of the Kaweah River for that purpose unless he would recognize certain claimed rights she had in the Hamilton Ditch. Notwithstanding the plaintiff's refusal to give him permission to enter her property on the north side of the Kaweah River, Pogue cut the wire fences, entered the same with teams, equipment and materials, and undertook the repair of his dam on the following day. In so doing he followed a course near the north bank of the river. He used some dirt, brush and tree limbs taken from the property of the plaintiff in his first attempt to repair the breaks around the north end of his dam. Plaintiff immediately commenced the first of her four actions.

In that action, numbered Superior Court No. 25,827, she prayed for and obtained a preliminary injunction restraining the defendant Pogue from entering upon her property and from using any of the soil, sand or any other property comprising a part thereof or located thereon. The effect of the restraining order was to preclude Pogue from maintaining either his ditch or his dam. Pogue later agreed with plaintiff's then attorney that he might continue going upon the property notwithstanding the temporary restraining order but conditioned that he was not to use any more soil or brush or tree limbs in his endeavor to save his dam. The restraining order was modified accordingly, on March 14, 1936. Pogue thereupon continued to haul rock and dirt upon the property of plaintiff and to extend the north end of his cement dam to the north bank of the Kaweah River, by depositing the rock and dirt in a gap which had been washed between the two by the high waters of the river. The repairs to the dam were completed within a short space of time. The first action was allowed to remain dormant during the remainder of 1936, and until the last of April, 1939, when Pogue and Smith filed their answer and original cross–complaint in that first action.

During the month of August, 1936, it became necessary for Pogue to make additional repairs to both ends of his dam, and at the request of the plaintiff he changed the route of his entry to the north end of the dam from a route which to some extent followed the north bank of the Kaweah River to what will hereinafter be referred to as the Olivera route.

In February, 1937, the Kaweah River reached a flood stage of 13,000 cubic feet of water per second. As a result, the channel of the river was widened and materially changed its course. The river then went completely around the north end of the dam at the head of the Hamilton Ditch and completely around the rock and dirt and sand wing which had been added to the north end of the dam in the spring of 1936. The channel of the river at that point was doubled in width. (At the time the concrete dam was built the channel then measured about 90 feet in width.) During that flood, the river deposited a huge sand bar in that portion of its channel immediately in front of the cement dam which had theretofore diverted water into the Hamilton Ditch. The extent and size of the sand bar which completely obstructed the head of the Hamilton Ditch and which extended upstream from the dam for a distance of several hundred feet, extended from the south bank of the Kaweah River to the rock jetty or remains of the old rock, sand and dirt wing at the north end of the cement dam. For the purpose of obtaining water from the Kaweah River into the Hamilton Ditch in 1937, Pogue first had the sand cleared out of the head of the ditch and then extended the same through the sand bar in an attempt to get water into the ditch by gravity. This operation was not successful, and as an emergency measure, a Kingsburg Pump was installed on the sand bar in front of the cement dam and water was pumped into the Hamilton Ditch by means of that pump.

During this same year there was some interference by plaintiff with Pogue's secondary easements, i. e., the roads by which he gained access to the south end of the dam and also gained access to that portion of the Hamilton Ditch which is located upon the property of the plaintiff. One of the roadways used by Pogue began at the southwest corner of section 7 and followed along the edge of the bench land on high ground toward the head of the Hamilton Ditch. It was intersected in the middle by a second road which extended south to the south line of that section. In 1937, when flood waters of the Kaweah River had doubled the width of its channel and had deposited a sand bar in the channel which completely obstructed the head of the ditch, it became necessary for Pogue to do a great deal of work in order to obtain any water from the river for the irrigation of his properties. He found that a part of the plaintiff's lands which embraced a portion of both of the routes he had been using to gain access to the ditch and the south end of his dam, had been plowed up and planted to cotton for the first time in its history, and that to the same extent the two roadways which he had been using for the purpose of gaining access to his ditch and the south end of his dam, had been plowed up and destroyed.

Thereafter, and pursuant to some claimed agreement with the son–in–law of the plaintiff, Pogue moved the roadways which he had been using to a point north of the Hamilton Ditch in the vicinity of the cotton field, and built a new roadway and installed gates in the fences. In the spring of 1938, flood waters again visited the Kaweah River. There was a tremendous widening of the channel of the river at the head of the Hamilton Ditch, a change in the course thereof at that point, a washing away of a part of the point on the southerly bank of the river immediately upstream from the head of the Hamilton Ditch, and it would appear that a dam constructed along the same line as the cement dam would no longer be at right angles to the flow of water in the Kaweah River.

About June, 1938, Pogue consulted engineers in an endeavor to determine the best plan to maintain a water supply for the Hamilton Ditch. He then began the construction of a new dam, known as the wing type, and this is the main and most important matter concerned in these consolidated actions.

The second action, Superior Court No. 28,452, also involves the defendants' right to maintain that part of the Hamilton Ditch which is located upon the property of the plaintiff and the defendants' right to maintain the dam which diverts the water from the Kaweah River into the ditch. The judgment therein restrains the defendants Smith and Pogue from maintaining a dam in the Kaweah River at any point except in a location described in the judgment as beginning at a point where the southerly end of the old cement dam is located, and thence extending north 40 degrees west, along the line of the old cement dam, “to the north bank” of the Kaweah River, “said dam to be constructed, without damage to plaintiff, or to the real property of plaintiff”, and requires that said defendants remove the new dam and all of the earth, rock and sand with which the same has been constructed, from the present location in the bed of the Kaweah River, and requires them to fill the ditch which was cleaned out or constructed through the sand bar in the channel of the river so that the same shall be permanently obliterated.

Defendant Smith first maintains that he is not a proper or necessary party to be restrained under the injunction order. By the pleadings Pogue and Smith filed an answer and cross–complaint in the injunction proceeding wherein they “admit that for more than 20 years last past, they and their predecessors in interest, have maintained and now maintain a dam across said Kaweah River.” Defendants also admit that Pogue entered upon the plaintiff's land for the purpose of repairing and maintaining said dam and “intends to continue entering upon said land with necessary equipment for the purpose of maintaining and repairing said dam”; that defendants and their predecessors in interest have been for more than 20 years using and are now using certain described rights of way for such purposes. Under the pleadings and the evidence the trial court was justified in naming defendant Smith as a necessary party to the injunction. Mitau v. Roddan, 149 Cal. 1, 6, 84 P. 145, 6 L.R.A.,N.S., 275.

In June, 1938, the river was not confined to a channel approximately 90 feet in width running in a southwesterly course and at right angles to the face of the dam. On the contrary, it was sweeping past and around the north end of the dam in a channel which was then over 300 feet wide. The channel of the river immediately upstream and immediately downstream from the dam had been covered by a tremendous sand bar, and the head of the Hamilton Ditch was filled with sand. The ditch was no longer on a straight stretch of the river but occupied a position on the inside of a curve in the river channel. Defendant Pogue was advised and believed that an extension of the cement dam along the line thereof to the northwest would be pointed downstream, and towards the most vulnerable outside bank of the curve on which the head of the Hamilton Ditch was then located, and that an extension of the dam along the line thereof to the northwest would have pointed the waters of the Kaweah River towards the north bank thereof and would not enjoy the protective covering of any sand bar and would have resulted in further and extensive washing away of the lands of the plaintiff on a northerly and curved bank of the river.

The exact location of the new dam as constructed does not extend across the Kaweah River in a northwesterly direction as did the old cement dam. The evidence shows that the northerly end of the new dam was about 950 feet east of the point where the old concrete dam would have reached the northerly bank of the stream if it had been extended. The angle of the new dam to the stream differed materially from the angle at which the old concrete dam met the stream. The new dam was a wing dam extending up the river and was originally approximately 470 feet in length. It was not of concrete, but made up of rock and other materials brought onto the property and dumped into the river. The new dam crossed the river from the north bank thereof in a southwesterly direction, and the southerly end of the rock portion thereof meets the sand bar in the channel of the river at a point approximately 192 feet northeast of the northerly end of the old concrete dam. It is defendants' contention that a substantial portion of the new dam consists of the capped or surfaced remains of the sand bar which was created between the south rock portion of the dam and the headgate of the Hamilton Ditch, which comprises the 192 feet, and that as so built and arranged, it so closely parallels the south bank of the river immediately upstream from the south end of the old cement dam that the dam and the river bank in effect create a ditch leading to the headgate and that the rock portion of the dam and the ditch together, as constructed, form a completed dam which can be said to lead from the southerly end of the old cement dam.

It is plaintiff's contention that the new dam was built at a different place in the river than the old concrete dam, and that the easement previously enjoyed could not be thus changed or so extended; that the digging of the ditch from the headgate to the south end of the rock portion of the new dam was an extension of the Hamilton Ditch over additional property of plaintiffs and substantially invaded her property rights and increased the burden of the easement and was therefore not permitted under the previously acquired easement.

It is further contended that the nature of the new dam was such as to divert the force of the river toward the south bank and the head of the new ditch; that the old dam had the effect of ponding the water, with incidental benefits of sub–irrigation to the plaintiff's land; that the new dam simply diverted the force of the current toward the south bank of plaintiff's property; that the height of the water behind the new dam was higher than the height of the old concrete dam; that there was danger, not only to the immediate banks of the stream from the presence of the new dam, but the likelihood that, in times of high water, the river itself would cut straight across the plaintiff's property; that plaintiff's ranch is in the delta region of the river, and the surrounding land consists of silt; that under such circumstances the likelihood of a complete cutting through of the property by force of the stream is always present if the natural current of the river is interfered with by obstructions such as the new dam here in question; that by reason of the construction of the dam the river washed out considerable portions of the soil constituting plaintiff's property on both the north and south banks of the river; that the length, width and function of the two structures are dissimilar.

Defendants contend that the court's judgment completely ignores the changes wrought in the channel of the Kaweah River by the flood waters of 1937; that it ignores the fact that next year or ten years from now flood waters may wash around the south end of the dam which it permits defendants to construct and under the terms of the judgment the appellants will have no right to extend their dam south of its point of beginning; that it completely ignores the greater possibility that the dam which it permits the defendants to construct will point the waters of the river towards the most vulnerable outside curve in the north bank of the river and may cause the river to change its course to the north at that point; that this would not only render a dam constructed in the manner and along the lines sanctioned by the judgment utterly useless but would destroy many acres of the plaintiff's property.

It is then argued that the new dam, as constructed, did not invade plaintiff's property on the south bank of the river at any point and that it was ultimately anchored on the north bank of the river on property which is being purchased by Pogue from the California Western States Life Insurance Company; that under the judgment as worded, defendants would be unable to anchor the northerly end of a dam to the bank of the river; that even if that be permitted under the wording of the judgment, the north bank of the river was composed of silt and river sand and it would therefore be impracticable to so anchor it there; that the change in the location of the dam at the head of the Hamilton Ditch in no manner affected the substance of the easement as a means of getting water from the river into the head of the ditch; that the channel is confined to exactly the same purposes for which the old cement dam was used and that it does not create any added burden on the property of the respondent. It is therefore argued that defendants should not be required to move their dam from a safe location to an unsafe location merely because its predecessor, under different river channel conditions, had occupied a portion of such unsafe position.

The third action filed, Superior Court No. 28,587, involved the title to a triangular strip of land between sections 7 and 8 above mentioned, i. e., it is an action to determine which is the north and south dividing line between those sections. Engineers for both plaintiff and defendants testified as to their survey of the dividing line in question and each attacked the method of determination adopted by the others in their pursuit of the determination of the proper line. The trial court did not adopt the lines or uphold the views of the surveyors or engineers for either plaintiff or defendants but on the contrary found that an old established fence line near the lines as surveyed was the proper and agreed boundary line between said sections. The evidence indicates that this fence line had existed for many years, in fact, long before the Hannahs or Mr. Pogue acquired their respective properties. The findings fixed the boundary line according to the established fence line and quieted the title of the respective parties accordingly.

The trial court made separate findings in each case herein involved. As to Superior Court case No. 25,827, the trial court found generally, insofar as the issues here are concerned, in accordance with the facts above related; and that defendant Smith was the owner of the legal title to the easements for maintenance of a dam across the Kaweah River as described in its judgment above mentioned, and the easement for the Hamilton Ditch as it existed prior to the construction of the new dam. The court then found that plaintiff Mrs. Hannah caused the dirt road along the secondary easement of right of way south of the river to be plowed up and to be obstructed by fences without making any provision for gates, and that she padlocked such gates as were used by defendants in gaining access to their ditch and dam. The court then found that by reason thereof defendants “suffered injury and damage * * * but that the court is unable to determine from the evidence introduced the amount of said monetary damages, and the court therefore finds that neither of the cross–complainants have been damaged in the sum of $10,000 or in any other sum.” This finding was followed by the finding that defendants were entitled to a secondary easement, i. e., a right of way for road purposes across plaintiff's land south of the Kaweah River as particularly described.

Defendants now complain because the court refused to give a judgment in their favor on the issue of damages. Defendants' proof of damage was speculative and at least confusing and uncertain. In view of the evidence the court was justified in its failure to find any particular sum as monetary damages. 8 Cal.Jur. p. 909, § 142. The evidence fully justified the court's finding in reference to the easement for road purposes south of the Kaweah River, which easement was given to the defendants. Vargas v. Maderos, 191 Cal. 1, 3, 214 P. 849. The court then found that defendants were entitled to an easement of right of way for road purposes north of the river, and described it with some particularity. The court granted a new trial in reference to this particular issue only. No further proceedings were taken in that respect in the trial court, so that portion of the finding and the portion of the judgment based thereon is not now pending before us for consideration. The court then enjoined the defendants Pogue and Smith from entering upon plaintiff's land except over the right of way described, and from using any of the soil, sand or other materials on her property for any purpose. The court also restrained plaintiff from interfering in any manner with defendants' enjoyment of the easement of right of way for road purposes above described, for their operation of the Hamilton Ditch as originally constructed, and restrained her from interfering with the defendants' construction, maintenance and operation of the dam at the site described in the judgment. A similar finding and judgment was entered in Superior Court case No. 28,452, and in addition it was found that plaintiff had suffered damages by reason of the erection of the dam at the new site, but also found that the court was “unable to determine, from the evidence introduced, the amount of the monetary damage theretofore suffered by plaintiff”, and accordingly found that there was no sum due her for that reason. It was then expressly found that “the new ditch referred to and described in these findings of fact was not, at any time or at all and is not a part of said old Hamilton Ditch. Said new ditch was and is constructed wholly over and upon lands owned solely by plaintiff and said new ditch forms a connection between the Kaweah River above the dam hereinbefore described, and the said Hamilton Ditch.” The trial judge, after visiting the scene, concluded that the new earth, rock and sand dam referred to and the new ditch above mentioned were at all the times mentioned constructed and maintained in their entirety wholly without right and contrary to the rights of plaintiff. Judgment was rendered accordingly.

As to the question of the evidence in Superior Court case No. 28,587 supporting the findings and judgment, we are convinced that the trial court was justified in the conclusion reached in reference to adopting the established fence line as the proper dividing line between sections 7 and 8 above described.

While the evidence is not so conclusive in its nature as to have compelled the trial court to find in favor of an agreed boundary, the evidence in this respect does show that the fence north of the segregation corner existed for at least 20 years prior to the acquisition of the Hannah ranch by the present owner. There is evidence that portions of the fence crossing the river had been washed out or down the river on several occasions during those years. However, the evidence shows that the fence was replaced. Whether or not it was replaced at its former location was in dispute. The court heard all of the evidence on that subject and was in a better position than this court to determine that question. There is sufficient evidence to support the finding of the trial court in this respect. There is also evidence that along this fence line are or were trees and bushes as well as a power line leading to a pump house located on the Hannah property. Other similar circumstances were considered by the court in respect to this established fence line.

Appellant urges that there is no proof that there was ever any uncertainty or agreement as to the location of the true boundary line. Although there is no direct evidence to that effect, yet the facts found to exist justify the inference that the previous owners had agreed upon the location of the boundary line. An agreement fixing a boundary line need not be established by direct evidence but may be inferred by conduct, and especially by long acquiescence. The agreement must be express or implied from the acts of the parties and acquiesced in for the period fixed by the statute of limitations. A presumption that an agreement formerly was made as to the location of a boundary line may arise from the fact that one or both of the adjoining owners have definitely defined such line by erecting a fence or other monument on it and both have treated the same as fixing the boundary between them for such length of time that neither ought to be denied the correctness of its location. Board of Trustees v. Miller, 54 Cal.App. 102, 201 P. 952. Whether other testimony of the parties is sufficient to overcome the justifiable inference from long acquiescence under the circumstances shown, involves the weighing of conflicting evidence, a function exclusively of the trial court, and is not a question of law within the province of the court of appeal. Todd v. Wallace, 25 Cal.App.2d 459, 464, 77 P.2d 877; Clapp v. Churchill, 164 Cal. 741, 745, 130 P. 1061. This is especially true in the instant case since there is no clear and satisfactory showing that the legal boundary line is different from what is indicated by the fence. Perich v. Maurer, 29 Cal.App. 293, 155 P. 471.

Appellants further complain that the decree leaves a description of the boundary line in a vague and uncertain condition and incapable of location from the description given therein. While there is some merit to this complaint, the decree specifically describes the lines as surveyed by the surveyors for each party. The variations between those lines, as thus surveyed, form a triangle of land with its apex located at the segregation or meander corner on the east line of section 7 as shown on the plats of the United States Government survey. The area of the triangle thus formed consists of about 7.5 acres. The real property thus specifically described is outlined in red on a map or plat attached to the judgment and by reference made a part of it. On that map or plat the court has designated certain points and described them, and has decreed that “a boundary fence exists on said real property, running northerly from the apex of the said triangle of land and cutting the base of the said triangle of land at a point approximately 35.3 feet east of the westerly termination of said base of said triangle. * * *” When considered in connection with the plat and the lines established by the respective parties, it cannot be said that the line thus established in the decree is so uncertain as to description that it cannot be sufficiently identified or located. Newport v. Hatton, 195 Cal. 132, 231 P. 987. The decree quieting the title to property of both defendants and plaintiff in respect to said line was proper. In an equity suit in which all of the parties are before the court, it is the court's duty finally to determine the respective rights of the parties to the land and dispose of all of the issues presented by the pleadings. California, etc., Co. v. Schiappa–Pietra, 151 Cal. 732, 91 P. 593; 10 Cal.Jur. p. 559, § 96; 22 Cal.Jur. p. 190, § 58.

The remaining question here involved is, no doubt, the main and most perplexing question presented on this appeal.

At the outset, it cannot be denied that defendants have a recognized right to use the Hamilton Ditch and to construct, repair and maintain a dam at the head of that ditch for the purpose of obtaining water from the Kaweah River with which to irrigate their lands. The court so found and such right is conceded by the pleadings.

The evidence conclusively shows in this case that the stream had been obstructed by deposits, from natural causes, of gravel in its bed so as to prevent the flow of water to defendants' ditch. Under these circumstances the duty of making the repairs essential to their employment of the easement devolved upon defendants and the owner of the servient tenement was under no obligation to remove these obstructions to the enjoyment by defendants of their right to the water. In the exercise of this right, defendants, in a reasonable and proper manner, without damage to the plaintiff, may make such an alignment of the stream, and perform such acts, as are essential to their enjoyment of the water. Ware v. Walker, 70 Cal. 591, 596, 12 P. 475, 476. The factual background in the cited case is so similar to the undisputed facts in the instant case that we feel impelled to recite it and quote from that case in so far as it may affect the rights of the respective parties here involved. There the plaintiff Ware obtained a final decree perpetually enjoining the defendant Walker from interfering with the ditch or dam of Ware in the bed of the Arroyo de los Gatos upon the land of the defendant, or from obstructing the flow of the water of said arroyo into said ditch. Plaintiff there, among others, appropriated certain water of that river, at a time when the land which was later owned and possessed by the defendant was still the property of the United States government. The water was taken out from the bed of the stream at that time with the approval of the party then in possession of the land, and he afterwards obtained a patent for it. As part of the ditch which conducted the water to the plaintiff's land the bed of the arroyo was used. After a time, when the defendant had become the owner of the land, he was not willing to allow the plaintiff to appropriate and use the water. When plaintiff undertook (by reason of the changes in the bed of the stream having diverted the flow of the water from the head of the ditch) to go higher up in the bed of the stream, which belonged to the defendant, and construct therein at another point on his (defendant's) land, a certain dam and extension of the ditch, so as to again cause the water to flow into it, the defendant tore down the dam, and obstructed so much of the ditch as was upon his land above the original point of appropriation. It was to prevent further action of that kind, and to maintain his control over the water thus flowing over a portion of the defendant's land, where the original ditch had not run, that the plaintiff brought the action. The court held that the conduct of the defendant in the premises was not justifiable; that the plaintiff was entitled to use the water of the stream to which he had obtained the right of appropriation prior to the defendant's ownership of the land through which the water flowed in its natural current. The court then said:

“All that the plaintiff did in securing to himself the continued use of the water to which he had thus become entitled was to go higher up in the bed of the stream than he had originally done, and dig out a small ditch or channel in the gravelly surface thereof through a bar that had been formed by freshets in the stream, and erect, at the head of such ditch, a wing–dam to divert the waters of the stream, in the usual quantity that he had hitherto used, down along its bed into his original ditch. At no point where he thus used the bed of said stream (owing to the height of the banks thereof) could the defendant make any beneficial use of the water thus taken; and no portion of his land, available for any useful purpose, was invaded or taken. In fact, all that the plaintiff did was to remove obstructions to the flow of its waters from the bed of the stream, higher up on the defendant's land than the point from whence such waters could be originally diverted into the ditch. The plaintiff did nothing more of injury to the defendant than if he had removed a number of fallen trees which might have been washed down by the floods of winter, and which had lain across the stream, obstructing the flow of the water, and causing it to run upon the farther side away from the plaintiff's ditch; and such action was lawful. The plaintiff, by the construction of his ditch, and the appropriation and user of the water of the stream, acquired, as against the defendant, a subsequent purchaser from the United States, as complete and perfect a right to maintain his ditch, and have the water flow to, in, and through the same, as though such right or easement had vested in him by grant. Where the use of a thing is granted, everything is granted essential to such use. Such a right carries with it an implied authority to do all that is necessary to secure the enjoyment of such easement.” (Citing cases.)

In the instant case, upon a similar set of facts as there presented, the trial court concluded that plaintiff's property had been invaded by defendants, required them to remove the present dam structure and ditch, and then prescribed an exact place where the dam could be built or extended and provided that no other place or site could be used by defendant for the purpose of supplying water to the head of the Hamilton Ditch.

Defendants concede that their right to use the Hamilton Ditch, and a dam at the head of that ditch, for the purpose of obtaining water from the Kaweah River with which to irrigate their lands, is a burden upon the servient tenement owned by the plaintiff; that the defendants in the legitimate exercise of their well–established and recognized right to maintain a dam in the river at the head of the ditch have obstructed the flow of the waters of the river in the channel thereof and that such obstruction of the flow of the waters of the river has constituted and now constitutes some hazard to the banks thereof. However, it is argued that the very nature and purpose of a dam employed to divert water from a river into an irrigation ditch necessarily involves obstructing the otherwise unhampered flow of the waters of the river and necessarily involves some hazard to the banks of the river.

Plaintiff has cited many cases which properly state the rule forbidding changes in the character of an easement, and prohibiting any material increase in the burden thereof upon the servient estate. Defendants do not question the rule of law or its application to the facts of the cited cases where it appears, but believe that the facts of the cited cases are readily distinguishable from the facts of the cases involved in this appeal. Felsenthal v. Warring, 40 Cal.App. 119, 180 P. 67, 70, is typical of the authorities relied upon by the respondent. In that case the plaintiff owned 137 1/2 acres of land adjoining Hopper Creek in Ventura County, of which no more than 13 acres were suitable for cultivation. The defendants owned a ditch which took out of said creek at a point on the plaintiff's property, and which extended from said point across the property of said plaintiff to the lands of the defendants. Flood waters eroded the bank of the stream on which the ditch was builded so as to move the westerly bank of the stream several feet farther west than it had previously been and a section of the ditch was washed away. Thereupon the defendants reconstructed 350 feet of their ditch 25 to 40 feet west of the former ditch line. It will be noted in the cited case that the defendants did not confine their repairs to the bed or channel of the creek, but undertook to build a new ditch outside of the channel and up on a portion of the plaintiff's property which was suitable for cultivation and which was actually planted to corn at the time of its invasion by the defendants. The court was considering a ditch rather than a dam in that case but its decision indicates that if the defendants therein had confined their activities to the creek bottom where they would have done the plaintiff no injury, the plaintiff would not have been heard to complain, and would not have received injunctive relief against the defendants.

In the instant case the activities of defendant Pogue in constructing and maintaining the new dam have been confined to the bed or channel of the Kaweah River. There has been no new ditch constructed on the banks of the river or upon any portion of respondent's property suitable for cultivation or planted to any crops. The property here involved at the head of the Hamilton Ditch is nothing more than pasture land, overgrown with trees and underbrush. Its exact character is amply illustrated by numerous photographs which were received in evidence. There is nothing in the case of Felsenthal v. Warring, supra, which decides that the defendants therein did not have the right to adapt their dam in the bed or channel of Hopper Creek to its increased width as occasioned by the flood waters which washed away a section of their ditch. On the contrary, that decision recites that nothing in the case of Ware v. Walker, supra, “is inimical to” the views herein expressed.

Oliver v. Agasse, 132 Cal. 297, 64 P. 401, is comparable in point of facts to the case of Vestal v. Young, 147 Cal. 715, 82 P. 381, and each has nothing in common with the facts of the instant case. They involve the substitution of a pipe line for an open ditch, or an open ditch along an entirely different line formerly occupied under the easement. Even those authorities indicate that not all alterations in the mode of enjoyment of an easement are prohibited, but only those which impose an increased restriction upon the right of the owner of the servient tenement to the enjoyment of his property. Allen v. San Jose Land & Water Company, 92 Cal. 138, 28 P. 215, 15 L.R.A. 93, is also factually different. It involved a substitution of a pipe line for an open ditch. Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A.,N.S., 851, 113 Am.St.Rep. 349, involved a replacement of a 10–inch pipe line with a 14–inch pipe line. In Kern Island Irrigating Co. v. City of Bakersfield, 151 Cal. 403, 90 P. 1052, it was held that an easement for the use and maintenance of a small ditch through the city of Bakersfield did not entitle the owner of such easement to construct a ditch having a capacity five or six times greater than the original ditch. Fletcher v. Stapleton, 123 Cal.App. 133, 10 P.2d 1019; North Fork Water Co. v. Edwards, 121 Cal. 662, 54 P. 69; Colegrove Water Co. v. City of Hollywood, 151 Cal. 425, 90 P. 1053, 13 L.R.A.,N.S., 904, and Matthiessen v. Grand, 92 Cal.App. 504, 268 P. 675, are also cited by plaintiff. The facts therein are wholly dissimilar to the facts in this case and are not contrary to the holding in Ware v. Walker, supra, where the facts are similar. That case has been approved by numerous and more recent decisions of the Supreme Court of this state, including the case of Ward v. City of Monrovia, 16 Cal.2d 815, 108 P.2d 425, 429, in which it is said that Ware v. Walker states the well recognized rule “that an express or implied grant of an easement carries with it certain secondary easements essential to its enjoyment, such as the right to make repairs, renewals, and replacements. * * * In such cases it has been recognized that an insubstantial change in the location of the means of diversion will not destroy the easement.” Defendants have diverted their water from the Kaweah River for the irrigation of their lands. Such water has always been and is now being diverted from that river at the head of the Hamilton Ditch by means of a dam across it. The dam and ditch leading to the headgate is builded entirely within the bed or channel of the river which property cannot be beneficially used by the plaintiff for any useful purpose. The lower court recognized defendants' right to maintain a dam across that river at the head of the Hamilton Ditch for the purpose of diverting water of the river and transporting the same into that ditch for the irrigation of the defendants' land. The defendants' right in such regard is recognized by the case of Ware v. Walker, supra, and other decisions. Burris v. People's Ditch Co., 104 Cal. 248, 252, 37 P. 922; Pacific Gas & E. Co. v. Crockett L. & C. Co., 70 Cal.App. 283, 294, 233 P. 370; De la Cuesta v. Bazzi, 47 Cal.App.2d 661, 670, 118 P.2d 909; City of Gilroy v. Kell, 67 Cal.App. 734, 743, 228 P. 400. We see no justification in the law, and no sound reason in fact, for limiting the defendants' right to exercise their easement for the construction and maintenance of such a dam, in the manner in which the same has been limited by the judgments of the lower court herein.

The record discloses that like many other comparable rivers in this state which have their origin in our higher mountains, the flow of the Kaweah River ceases entirely during the summer months of dry years. In flood years the flow of water in that river has been approximately 35,000 cubic feet of water per second. The soil in the neighborhood of the head of the Hamilton Ditch consists of bare river sand topped with approximately one foot of alluvial silt. Due to the varying flows of water in the Kaweah River, and the character of the soil in the neighborhood of the ditch, the course of the river does not remain stationary, but can and does change very rapidly in times of high water. The factors to which we have just referred not only show the absolute necessity for prompt action when repairs to the dam are required, but they also make it impossible to repair the dam, or to replace it without going beyond the strict confines of the particular strip of river channel on which the original dam was rested. It is obvious that the ends of a dam cannot be tied into the bare sand banks on either side of the Kaweah River without making at least some inroads into those banks. Any dam built up to but not into those banks would not long hold water. It is equally obvious that after flood waters have widened the channel of the river from the original width of ninety feet to a new width of approximately three hundred feet, a dam no more than ninety feet in length would be of no value for the purpose of diverting the waters of the river into an irrigation ditch. If future flood waters flowing in the Kaweah River at the head of the Hamilton Ditch should cause the course thereof to veer to the north instead of to the west, a dam running in any northerly and southerly direction would be utterly valueless for the purpose of diverting water into an irrigation ditch having its head at the south end of such dam. It is equally obvious that the defendants should not be required to permanently exercise their acknowledged right to maintain a dam in the river at the head of the Hamilton Ditch in the manner now prescribed by the court by its judgment. It is also obvious that the defendants' right to use the ditch and a dam in the Kaweah River at the head of the ditch for the purpose of irrigating their lands is an empty and meaningless right, unless they are permitted to exercise the same, and unless they are permitted to maintain the dam in some manner adaptable to the characteristics and nature of the Kaweah River and its changing course. The lower court by its judgments in two out of the three cases here under consideration, restrained the appellants from maintaining any dam in the Kaweah River except at a site described as beginning at the south end of the old cement dam, and thence extending across the Kaweah River to the north bank thereof in a direction described as north 40 degrees west. Those judgments also prescribe that any dam constructed by the defendants in accordance with their terms shall be constructed without damage to the plaintiff or to the real property of the plaintiff.

The judgments of the lower court completely overlook the obvious fact that unless the defendants are permitted to build into the bare sand banks of the river for the purpose of anchoring both ends of any dam which they might construct along the line prescribed by the lower court, the waters of the river would immediately wash around the ends of any such structure. Any inroads into the banks of the river for that purpose would certainly constitute at least a technical invasion of the property rights of the plaintiff and could be construed as at least a technical violation of the injunctive terms of the judgment. There would also be at least technical damage to plaintiff and to her real property. The injunction of the lower court restraining the defendants from constructing any dam in the river except on a site specified therein is permanent in character. It is conceivable that the river might wash around the south end of any new dam constructed on the site prescribed in the judgments. The defendants would then be permanently enjoined from extending their dam in a southerly direction to any new south bank of the Kaweah River, because any such extension would constitute a violation of the express provisions of the judgments, would constitute an invasion of the plaintiff's property which might ripen into a right, and would involve damage to her property. The trial court did recognize the defendants' right to span the gap between the north end of the old cement dam and the north bank of the river, which gap was caused by the river washing around the north end of the old dam.

Why should defendants be permanently enjoined from spanning any gap which may subsequently occur at the north or south end of the dam from exactly the same cause?

It is apparent from the exhibits that since the change in course of the river channel the old cement dam pointed partially downstream from the head of the Hamilton Ditch, and any new dam constructed along the line of the old cement dam would point the waters away from the head of the ditch and towards the most vulnerable north bank of the river. Any such dam could not possibly be constructed to cross the Kaweah River at right angles to the flow of water therein. It would unquestionably cause the waters of the river to converge against the weak outside bank of a curve in the channel of the river, and the trial court determined that the maintenance of a new dam at such an angle to the flow of water in the river at that point would not materially increase the burden of the defendants' easements upon the servient estate of the plaintiff, or affect the substance of defendants' easements. If the defendants have the right to maintain a dam in the Kaweah River, they must have the right to make such repairs thereto and changes therein as are dictated by changes in the width and course of the channel of the river occasioned by flood waters which flow in it. Under the law the defendants have the right to maintain a dam wholly within the bed or channel of the Kaweah River for the purpose of the enjoyment of their easements in such a reasonable manner and not to needlessly increase the burden upon the servient tenement, and have the right to make such repairs, renewals and replacements of that dam as may be required by the unpredictable conduct of the river which may result in a further variation in the width and course of its channel, without being tied down by the permanent restrictions contained in the judgments of the trial court.

The trial court's judgment which in effect precludes defendants from invading the banks of the river for the purpose of anchoring the north end of their dam; that enjoins them from extending their dam to the south, even though the waters of the river may wash around the south end of their dam; that also enjoins them from building or maintaining a ditch or dam at any point in the channel of the river except along the line of the old cement dam and the prolongation thereof to the north bank of the river; that enjoins them from extending the old Hamilton Ditch to reach any future change in the bed of the river that may be caused by future floods; and that enjoins them from constructing any dam without damage to the property of the plaintiff, is not supported by the law or the facts, and therefore should be reversed.

That portion of the judgment in Superior Court case No. 25,827, which enjoins defendants from “using any of the soil, sand or any other materials on said real property of plaintiff” as alleged in the petition, that portion thereof enjoining plaintiff from interfering with defendants' secondary easement of rights of way for road purposes described, and that portion fixing the rights of the respective parties in and to the Hamilton Ditch as originally established and the waters therein, is affirmed.

The remaining portion of the judgment entered in Superior Court case No. 25,827, and the judgment entered in Superior Court case No. 28,452, involving, and which unduly limits, defendants' rights to construct or maintain a dam and ditch in the channel of the river except as prescribed by that judgment, are reversed.

The judgment entered in Superior Court case No. 28,587, involving the disputed boundary line is affirmed. Appellants to recover costs from plaintiff.

GRIFFIN, Justice.

BARNARD, P. J., and MARKS, J., concur.