YORBA v. ANAHEIM UNION WATER CO

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District Court of Appeal, Fourth District, California.

YORBA et al. v. ANAHEIM UNION WATER CO. et al.*

Civ. 4429.

Decided: January 12, 1953

Harry M. Irwin, Los Angeles, Forgy, Reinhaus & Forgy and Fred Forgy, Santa Ana, for appellants. H. C. Head and R. C. Mize, Santa Ana, Cosgrove, Cramer, Diether & RinDge, Los Angeles, for respondent Anaheim Union Water Co. Head, Jacobs & Corfman, Santa Ana, for respondent Yorba Irr. Co.

Plaintiffs appeal from a judgment adjudicating their riparian rights, the prescriptive rights of defendant Anaheim Water Company to waters diverted from the Santa Ana River and conveyed by a canal through and across plaintiffs' lands, and the right of Yorba Irrigation Company to receive and use 200 miner's inches of water from said canal.

The complaint is to quiet title and for declaratory relief and contains two causes of action. It is alleged in the first cause of action, among other matters, that the plaintiffs are the owners of real property in the Canon de Santa Ana, County of Orange, comprising approximately 1500 acres; that each and all of the parcels of real property owned by plaintiffs are riparian to the Santa Ana River; that about 1,000 acres thereof are cultivatable and susceptible of irrigation from the waters of said river; that plaintiffs are entitled to divert, take and use water from the said river for the reasonable and proper irrigation of their lands and for domestic purposes; that approximately 250 inches of water, measured under 4 inch pressure, is a reasonable amount of water for the proper irrigation of plaintiffs' lands; that the plaintiffs are entitled to divert and take from the Santa Ana River sufficient water which will be required and utilized for the reasonable and proper irrigation of their riparian lands and for domestic uses thereon; that the defendants claim an estate and interest in the water of said river adverse to plaintiffs; that said claims of said defendants are without right and that whatever estate or interest that defendants may have in the water of said river is subject and subordinate to that of plaintiffs.

In the second cause of action it is alleged that by court decree a portion of the Rancho Canon de Santa Ana of Orange County, California, was divided into the Prudencio Yorba, Vicente Yorba and William McKee allotments (describing them by metes and bounds); that in 1878 and 1879 and Vicente Yorba and William McKee allotments were deeded to Prudencio Yorba; that each of the parcels of each of the plaintiffs constitute a part of one or the other of these three allotments and that plaintiffs acquired their titles as successors of Prudencio Yorba; that the allotments are contiguous to each other; that each is contiguous to the river and that the ordinary, usual and natural stream passes along over and under the southerly portion thereof; that each of the allotments was riparian to the river and the owners were entitled to divert water therefrom for irrigation and domestic use on said land.

It was alleged that in April of 1876 the Canon de Santa Ana Water Company was incorporated for the purpose of acquiring rights of way and constructing canals and ditches to supply water for irrigation and domestic use; that in June, 1876, certain grantors, including Prudencio Yorba, Vicente Yorba and William McKee, executed and delivered deeds remising, releasing and quitclaiming to Canon de Santa Ana Water Company, its successors and assigns ‘a reasonable right of way through their lands in the Rancho Canon de Santa Ana’ for a canal on the right bank (north bank) of the Santa Ana River * * * ‘westerly to the westerly boundary of said rancho and for ditches for bringing out and distributing said water’; that in consideration thereof, the canal company agreed that the grantors should have the same privileges of full stockholders in obtaining water from said canal; that their said land should be supplied with water at the lowest rate at which water is furnished and that said grantors should have free of cost all water necessary for domestic purposes and the watering of livestock; that upon the execution and delivery of said deeds ‘and pursuant thereto’, the Canon de Santa Ana Water Company entered upon and took possession of the right of way; that by the execution and delivery of said deeds the grantors fully complied with and performed all the conditions by them undertaken; that thereafter Canon de Santa Ana Water Company and its successors constructed upon said right of way the canal commonly known as the Cajon Irrigation Canal or the Cajon ditch connecting with the Santa Ana River at the point designated in said deeds and extending therefrom upon and across the lands of Rancho Canon de Santa Ana which the grantors in said deeds owned at the time of the execution thereof, including the three allotments in question ‘to and beyond the western boundaries of said rancho’, for the purpose of diverting water from the Santa Ana River through the canal for the irrigation of said lands and for domestic purposes; that ever since said canal was constructed, as aforesaid, until the present time, the successive owners of said right of way have diverted water from the Santa Ana River into the through said canal and have distributed and supplied water therefrom under and pursuant to said contract for irrigation and domestic purposes on said lands in the Rancho Canon de Santa Ana then owned by the grantors in said deeds; that following the execution of said deeds in 1876 Cajon Irrigation Company, a California corporation, acquired all the interests of said Canon de Santa Ana Water Company in said right of way and prior to September 12, 1878, entered upon and took possession of the right of way ‘claiming ownership thereof as the successor of Canon de Santa Ana Water Company’; that on September 12, 1878, Cajon Irrigation Company conveyed a one-half interest in said right of way and canal to Anaheim Water Company and on February 4, 1884, Cajon Irrigation Company conveyed all its interests in the right of way and canal to North Anaheim Canal Company; that on the same day North Anaheim Canal Company transferred its rights to Anaheim Union Water Company; that on February 9, 1884, Anaheim Water Company conveyed all its interests in the right of way and canal to Anaheim Union Water Company; that in February, 1884, Anaheim Union Water Company entered upon and into possession of the right of way pursuant to said conveyances and that at all times subsequent thereto and presently defendant Anaheim Union Water Company is the owner and in possession of said right of way.

It is alleged that on February 19, 1945, the defendant Anaheim Union Water Company adopted a motion directing its employees to prevent any use of water from the Cajon Canal by others than stockholders, excepting defendant Yorba Irrigation Company, and excepting diversions for domestic uses at six designated stations on the Bryant property and the property of the plaintiffs J. Coleman Travis, Ernest T. Yorba and Carlos Dominguez, and that the plaintiffs be notified to limit the use of water from the canal to domestic purposes.

It is alleged that by reason of said corporate action, plaintiffs were denied the same privileges as full stockholders in obtaining water from said canal; that defendant Anaheim Union Water Company now refuses to supply water from said canal to plaintiffs at its lowest rate and denies plaintiffs the right to receive water from said canal for the watering of stock and for domestic purposes except at the locations specified, and prevents plaintiffs from receiving any water from said canal for irrigation purposes and, accordingly, breached and repudiates its obligations arising under said deeds of June 26, 1876, and July 6, 1876, respectively.

Plaintiffs pray judgment decreeing that each parcel of their property is riparian to the Santa Ana River; that plaintiffs are entitled to divert therefrom sufficient water for irrigation and domestic uses upon their lands; that plaintiffs' right is prior and paramount to that of either of the defendants; that plaintiffs are entitled to receive water from the Cajon Canal upon the same terms and conditions as stockholders of defendant Anaheim Union Water Company and to be supplied with water at the lowest rate charged by defendant and to receive free of cost all water necessary for domestic purposes and the watering of livestock; that such rights are prior and paramount to the right of either of the defendants and their officers and agents be perpetually restrained from asserting any right to the waters of the river or the waters of the canal adverse to plaintiffs' right.

Defendant Anaheim Union Water Company in answering the first cause of action denied that the parcels of property of each of the plaintiffs lie contiguous to each other, and that each is contiguous to and abuts upon the river; denied that the ordinary and natural flow of the stream passes along the southerly portion of each of said parcels and that each of said parcels is riparian to the river, and that each of the plaintiffs is entitled to divert from the river sufficient water for reasonable irrigation of their irrigable lands.

It is denied that approximately 250 miner's inches is a reasonable amount of water for plaintiffs' irrigable lands and it is denied that the plaintiffs are entilted to take sufficient waters from the river as shall be required for the proper irrigation of said land and for domestic uses thereon.

In answering the second cause of action the said defendant denied that plaintiffs were entitled to divert and take water from the river sufficient for the proper irrigation of the irrigable lands of plaintiffs; admitted the execution and recording of the deeds conveying the right of way to the Canon de Santa Ana Water Company; admitted that the Canon de Santa Ana Water Company upon the execution of the deeds entered upon and took possession of the rights of way and thereupon it and its successors constructed the canal known as the Cajon Irrigation Canal connected with the Santa Ana River at the point designated in the said deeds and extending therefrom to and beyond the western boundary of the Rancho Canon de Santa Ana and that ever since said canal was constructed until the present time it has been used and presently is being used to carry and transport waters diverted from the Santa Ana River into and through said canal, and to distribute and supply waters therefrom to lands other than and downstream from but not to any of the lands described in said complaint.

The allegation that the Cajon Irrigation Company entered upon and took possession of the right of way and canal ‘claiming ownership thereof as the successor of the Canon de Santa Ana Water Company’ is denied.

For a second defense Anaheim Union Water Company alleged that for exceeding sixty years immediately preceding the filing of the complaint, it and its predecessors in interest, under claim of right so to do, openly, notoriously and adversely, continuously and without interruption at a point four miles upstream on the Santa Ana River from the location of each parcel of plaintiffs' lands have diverted fifty per cent of the entire normal surface flow of the stream and from said point of diversion (by means of said Cajon Canal) have conveyed said water so diverted over and across lands downstream from said point of diversion, including some but not all of the several parcels of land of the plaintiffs, and at a point downstream from plaintiffs' lands, have continuously and for more than forty years last past delivered from said Cajon Canal to defendant Yorba Irrigation Company 200 miner's inches continuous flow of water; that the waters so diverted into Cajon Canal remaining after delivery of 200 miner's inches to Yorba Irrigation Company during said entire period has been continuously applied and entirely consumed in beneficial uses and that during said period no portion of said water so diverted from said river into said Cajon Canal has been applied to irrigation uses upon any of plaintiffs' lands.

It is alleged that for a period exceeding fifty years immediately prior to the filing of the complaint Santa Ana Valley Irrigation Company, under claim of right so to do, openly, notoriously and adversely, continuously and without interruption, at a point on the Santa Ana River two miles upstream from the location of each parcel of plaintiffs' lands and two miles downstream from the location of the point of diversion of Anaheim Union Water Company, has diverted the entire normal surface flow of said stream passing said point of diversion of Anaheim Union Water Company and reaching said point of diversion of Santa Ana Valley Irrigation Company and by means of the Santa Ana Valley Irrigation Company's canal has conveyed said water so diverted over and across lands downstream from said point of diversion but not including any of the lands of the plaintiffs; that no portion of the water so diverted has been delivered to or applied to any beneficial use upon any of the plaintiffs' lands.

For a third defense it is alleged that plaintiffs' causes of action are barred by neglect and failure of the plaintiffs and their predecessors in interest prior to the bringing of this action to make any protest or demand against the defendants, or either of them, with respect to any of the matters alleged in the complaint; that plaintiffs and each of them has acquiesced in and has ratified the continuous diversions and the application of said water to beneficial use in the manner alleged in the answer; has ratified all the transactions and proceedings had and taken by each of the defendants and by reason of said lapse of time, said failure and neglect and said laches and acquiescence each of the plaintiffs is barred and estopped from maintaining this action.

It is further alleged that contemporaneous with the execution of the two deeds (June and July, 1876) the defendant and its predecessors in interest were diverting and subsequent thereto have continued to divert, under claim of right so to do, openly, notoriously, adversely and continuously, one-half of the entire normal surface flow of the Santa Ana River at a point known as Bed Rock Crossing, approximately four miles upstream from plaintiffs' lands, and by means of the Cajon Canal have conveyed the waters so diverted over and across lands downstream from said point of diversion, including some but not all of plaintiffs' lands; that said diverted waters have been entirely applied to and consumed in beneficial uses upon lands other than those of the plaintiffs; that during all of said period the plaintiffs and their predecessors in interest have developed underground percolating water on their lands and have irrigated entirely from underground water obtained by pumping operations and have obtained no water from said Cajon Canal for the irrigation of any of plaintiffs' lands; that the plaintiffs have not made or asserted any demand upon the defendant Anaheim Union Water Company or any of its predecessors in interest to be supplied with water from said canal for the irrigation of said lands and have voluntarily relinquished and waived any rights accruing to them under the terms of the June and July, 1876, deeds.

It is further alleged that in a certain action numbered 4676 in the Superior Court of Los Angeles county, entitled Anaheim Union Water Company, Plaintiff, v. Vicente Yorba, et al., Defendants, there was duly and regularly entered on the 21st day of June, 1903, an amended order of injunction, a copy of which is pleaded in the answer, restraining and enjoining the defendants and their agents ‘from diverting the waters of the Santa Ana River from the Anaheim Union Water Company's ditch and preventing the plaintiff (Anaheim Union Water Company) from diverting the waters of said stream to the extent of the capacity of its ditch by means of its said ditch and conducting the waters of said stream through plaintiff's (Anaheim Union Water Company) ditch, conditioned upon the Anaheim Union Water Company delivering at a point therein designated not to exceed 200 miner's inches of water to the Yorba ditch; that no further proceedings have been taken in said action; that the plaintiffs and/or their predecessors in interest in the pending action were defendants in said action No. 4676; that the rights and obligations of the parties of record in the pending action have been finally and fully fixed, determined and decreed and said adjudication has become final and binding upon the parties; that the pending action constitutes a collateral attack upon said amended order of injunction and upon the rights of the parties of record in said action No. 4676.

The defendant Yorba Irrigation Company filed a separate answer in which several of the defenses of the water company were reiterated and it was further alleged that the Yorba Irrigation Company obtained its right to 200 miner's inches of water from the Cajon Canal because of the fact that Bernardo Yorba in 1865 caused the Yorba ditch to be constructed from the Santa Ana River and water to be conducted through said ditch to the lands in the area now supplied with water by Yorba Irrigation Company, all of which lands were then owned by Bernardo Yorba; that the Yorba ditch was used for furnishing water for said lands for beneficial purposes from the time of its construction ‘until after Cajon Canal was constructed and completed’; that after the issuance of the order of injunction in said action No. 4676 in Los Angeles county, the said Anaheim Union Water Company and said Yorba Irrigation Company entered into agreements in conformity with and pursuant to said order of injunction by which agreements Yorba Irrigation Company is entitled to receive from said Cajon Canal 200 miner's inches of water.

The trial court made extensive findings of fact and rendered judgment in substance: That the plaintiffs respectively are the owners of specified tracts of land which are particularly described, some of which are riparian to the Santa Ana River; that prior to 1903 defendant Anaheim Union Water Company acquired by prescription and is the owner of the vested right to divert from the Santa Ana River upstream from plaintiffs' lands one-half of its entire normal surface flow by means of the Cajon Canal and to put said water to beneficial use upon lands other than those belonging to the plaintiff; that none of the plaintiffs own any right to take or use any of the waters from Cajon Canal, except that specified plaintiffs are the owners respectively of the right to take water therefrom at six specified locations and solely by the means specified therein for beneficial use upon designated parcels of plaintiffs' land; that Yorba Irrigation Company is the owner of the right to the use of and to take 200 miner's inches continuous flow from the waters conveyed in the Cajon Canal and that certain parcels of plaintiffs' lands are not riparian to the Santa Ana River.

Plaintiffs seek a reversal of the judgment herein on the ground that the evidence does not support certain findings made by the trial court and that there was error in not finding on other issues presented by the pleadings. Plaintiffs' first point is that the finding that prior to 1903 defendant Anaheim Union Water Company acquired and owns the prescriptive right to divert one-half of the entire surface flow of the Santa Ana River is not supported by any evidence.

The evidence supporting the findings of the trial court is largely documentary. In 1888 William Ham. Hall, state engineer, in his report on irrigation and the irrigation question, stated that in July, 1877 the Cajon Irrigation Company ‘made a filing at the head of the partially completed ditch (Cajon Canal) appropriating 4,320 inches of water, and began construction. They took possession adversely to the claim of the Canon de Santa Ana Company, and brought suit to quiet title as between, them. This action was never tried, and possession was never strongly resisted by the defendant’; that the Anaheim Union Water Company was organized in 1884; that ‘to this company were conveyed all the water rights and property of the Anaheim Water Company (including about 1,000 acres of irrigable land), the North American Canal Company, and the Cajon Irrigation Company. Since this consolidation was effected, perfect harmony has prevailed, and the area of irrigation has considerably extended. The only controversy they now have is with the owners of the Yorba ditch, whose rights by reason of long appropriation must be respected, and with whom they now have to share the half of the water in the river belonging to the north side. A suit is now pending to restrain the Yorba ditch owners from diverting more than 125 inches of water, but it has never been brought to trial.’ (The suit to which reference is made is entitled ‘Anaheim Water Company, et al. v. Cajon Irrigation, et al.’, No. 1606, in the Superior Court of Los Angeles County.) It is further stated in said report that ‘the (Cajon) canal is 8 feet wide on the bottom for about 10 miles, when its width is diminished to 6 feet. It is calculated to carry 3 feet depth of water, with side slopes of 1 to 1. Its grade is 2.11 to 2 1/212 feet per mile, its theoretical capacity almost 3,000 inches or 60 cubic feet per second, but it does not generally carry over 1,200 miner's inches or 24 cubic feet per second’; that the present organization (Anaheim Union Water Company) ‘has succeeded to the rights of the Anaheim Water Company, the Cajon Irrigation Company and its successor, the (New) North American Canal Company, the original North Anaheim Canal Company and the Kramer ditch, as well as to the work done under the irrigation district commissioners in districts one and two and to the rights of the Canon de Santa Ana Water Company.’

M. N. Thompson, an engineer employed by defendant water company, testified that since 1930 diversion works located immediately upstream from the intake to the Cajon Canal have collected and divided equally the entire flow of the river (when it does not exceed 150 or 200 second feet at that point); that one-half of the flow is there delivered into the Cajon Canal on the north side of the river and one-half is there turned back into the river channel; that the portion returned to the river channel flows in the stream bed to the intake of the Santa Ana Valley Irrigation Company's canal, where, in its entirety, it is diverted into said canal on the south side of the river; that the practice is to divert the entire normal flow of the stream during the irrigation season into these two canals and their intakes located five miles and one and one-half miles, respectively, upstream from the most easterly (upstream) boundary of the plaintiffs' land.

H. C. Head, attorney for defendant water company for twenty-five years, testified that he first saw the Cajon Canal of the Anaheim Union Water Company in 1883 and had seen it many times since that date; that its present location is approximately the same as when he first saw it; that ‘the company has maintained the canal, improved it; since it was originally built it has been concreted, concrete lining. Wooden flumes have been replaced by pipe lines or cement structures. It has defended its rights to the water in litigation, constructed reservoirs to hold the flow overnight and for storage purposes'; that for twenty-five years or more the Anaheim Union Water Company ‘has claimed the right to take the water from the river as it has taken it against anyone.’

Leo Sheridan, secretary of defendant water company, testified that since 1915 the company has taken one-half of the river stream at the Cajon intake.

In 1885 an action, No. 4676, was commenced in the Superior Court of Los Angeles County by Anaheim Union Water Company and against some 58 or 59 defendants, predecessors in interest of the plaintiffs in the instant action. This litigation involved a controversy between plaintiff Anaheim Union Water Company and the Yorba irrigators over conflicting claims to diversion rights in the Santa Ana River in the vicinity of Bed Rock Crossing, five miles upstream from the lands of the appellants and conflicting claims to amounts and use of the water there diverted and transported downstream through the Cajon and Yorba ditches and applied to beneficial uses at Yorba and Anaheim on lands downstream from the most westerly boundary from the lands of appellants. No portion of the waters in controversy in that litigation, case No. 4676, were used on the lands of the appellants herein.

An injunction was issued ordering the defendants to refrain and desist from diverting the waters of the Santa Ana River from the Anaheim Union Water Company's ditch and preventing the plaintiff from diverting the waters of said stream to the extent of the capacity of its ditch by means of its said ditch conducting the waters of said stream through said ditch, provided that so long as the plaintiff delivers from its ditch into the ditch of the defendants at its head sufficient water to fill the same to the extent of the capacity of the Yorba ditch not exceeding a flow of 200 miner's inches measured under 4 inch pressure. In June, 1903, by stipulation of the parties, the order of injunction was amended providing that the waters delivered to the Yorba ditch be delivered during the months of June, July, August and September and at such other times as sufficient water could be had in the river at the head of the Yorba ditch and the balance of the time the defendants should take the said amount of water into their ditch. This injunction, as amended, it still in force and effect.

It appears from the pleadings and files in said action that the order of injunction was intended by the parties and has been considered by them as a final disposition of their controversy for many years and there is testimony in the record that this injunction defining the rights of the parties was the result of ‘a mutual understanding’ and from that time until the present has been followed.

We conclude that the record herein contains substantial evidence supporting the trial court's finding that defendant union water company acquired and owns a prescriptive right to divert one-half of the entire surface flow of the Santa Ana River subject to the conditions contained in the injunction issued in action No. 4676.

Appellants next claim that no finding was made on the issue of the agreement in the 1876 deeds or the alleged servitude created thereby. In this connection, the trial court found that the deeds involved were executed on June 26, 1876 and on July 6, 1876, and both deeds are set forth in the finding. The grantors therein remised, released and quitclaimed to the Canon de Santa Ana Water Company, its successors and assigns reasonable right of way through (grantors') land in the Rancho Canon de Santa Ana for canal, flumes and aqueducts to conduct water over the land of the grantors. Each deed contained a provision that the grantors should have the same privileges as full stockholders in obtaining water and should be supplied with the same at the lowest rate at which water was furnished and that the grantors should have free of cost all water necessary for domestic purposes and watering of stock at convenient places on the said canal. It is claimed by appellants that the two deeds created a servitude on the right of way conveyed by said deeds appurtenant to the lands then owned by the said grantors and that no finding was made on this issue. However, the court found that other than as set forth in the finding relative to the execution of said deeds the Canon de Santa Ana Water Company made no contract with the grantors or any of the grantors named in the said deeds; that upon the execution of said deeds the Canon de Santa Ana Water Company entered upon and into possession of the right of way described in said deeds. The court further found that the said water company never executed any deed or other conveyance of said right of way, or of any right or property acquired by said company through said deeds. Defendant Anaheim Union Water Company does not claim to have acquired the rights of the Canon de Santa Ana Water Company by conveyance. Its claim is based on the prescriptive rights acquired by Cajon Irrigation Company, defendant Anaheim Union Water Company's predecessor in ownership of the canal. The trial court found in this connection that subsequent to the execution of said deeds the Cajon Irrigation Company and its grantees, predecessors of the defendants herein in the ownership of said canal, acquired said right of way in said canal by prescription and owned the same. Since defendant's title was not acquired by said deeds, a finding on the issue of the agreement or alleged servitude was not necessary.

It is next contended that no finding was made on the issue of plaintiffs' alleged ownership or portions of their lands and the contiguity thereof with other parcels of plaintiffs' land. The complaint alleges that the plaintiffs are the owners ‘subject to rights of way for railroad’ of respective parcels of land described in exhibit ‘A’ annexed to the complaint; that said parcels lie contiguous to each other and each abuts on the river and is riparian thereto; that the plaintiffs are entitled to divert and take water from the river sufficient for proper irrigation of their riparian lands. These allegations are denied by the defendants.

The findings and conclusions specifically cover ownership of the property, continuity of each parcel respecting other parcels, the description of those parcels that abut and those that do not abut upon the river.

Appellants contend that there is no finding as to the ownership of half of the portion of the land within the right of way of the A. T. & S. F. Railroad bordering parcels 10, 11 and 12. The descriptions in the complaint of those three parcels tie to the center of the railroad. The descriptions in the findings likewise tie to that center line but then add ‘excepting therefrom that portion occupied by the railway of the A. T. & S. F. Railroad’. Such exception is a finding that the owners of parcels 10, 11 and 12 are not the owners of the portion thereof within the railroad right of way. The trial court found specifically respecting the contiguity of the various parcels of real property owned by the plaintiffs and their lying contiguous to each other and this finding is supported by the record before us.

Appellants assert that the findings that specified parcels of plaintiffs' lands are not riparian to the Santa Ana River are contrary to the undisputed facts and the law. The court found that the Prudencio Yorba, Vicente Yorba and William McKee allotments, within the respective periods of time that Prudencio Yorba, Vicente Yorba and William McKee were the respective owners thereof, was contiguous to and abutted upon the Santa Ana River and that these parties, as owners of said allotments, were entitled at all times throughout their ownership thereof to divert and take water from the Santa Ana River for the reasonable and proper irrigation of the irrigable lands in said allotments, and for domestic uses thereon. The court found that parcels 3, 6, 7, 8, 9, 10, 11, 11a, 11b, 12, 14, 19 and 20a, as said parcels are numbered and particularly described in the findings, are not riparian to said river by reason of various conveyances made by the owners thereof. The defendant Anaheim Union Water Company is not claiming title or right to water as a riparian owner but as a holder of a prescriptive title. As far as the water company is concerned, the present action is not between riparian owners of water rights in the Santa Ana River.

Findings as to whether certain parcels of plaintiffs' lands are or are not riparian to the Santa Ana River are not necessary to support the judgment herein that the defendant Anaheim Union Water Company acquired a prescriptive right to divert and use one-half of the entire normal surface flow of the river, subject to the rights of the Yorba Irrigation Company to 200 miner's inches thereof. The judgment does not deprive plaintiffs of the right to develop water on their lands for irrigation purposes, a right which they have exercised for many years.

Finally, it is argued that the findings that defendant Yorba Irrigation Company owns the right to the use of 200 miner's inches of water from the Cajon Canal is not supported by the pleadings or evidence. This contention is without merit. The evidence shows that the Anaheim Union Water Company had been delivering 200 miner's inches of water to the Yorba irrigators and to the Yorba Irrigation Company out of the Cajon Canal at a point near the old Catholic Church (west of the lands owned by plaintiffs herein) since 1885, being the time of the commencement of the injunction proceedings heretofore referred to as case No. 4676. That case, as noted, involved a controversy between the Anaheim Union Water Company and predecessors in interest of plaintiffs herein and the Yorba irrigators over conflicting claims to diversion rights in the Santa Ana River at a point upstream from the lands of appellants, and the injunction issued therein provided for the delivery of 200 miner's inches of water to the Yorba ditch. The Yorba Irrigation Company and the Anaheim Union Water Company executed agreements in conformity with the injunction by which agreements the Yorba Irrigation Company is entitled to receive from the Cajon Canal 200 miner's inches of water continuous flow delivered at a point in the Yorba Irrigation Company district at a point west of the lands of the plaintiffs herein and being the area originally supplied with water through the original Yorba ditch. The finding that the Yorba Irrigation Company has acquired the right to the use of said 200 miner's inches of water is fully supported by the evidence.

The evidence shows that for a period of more than five years immediately preceding the filing of the complaint herein some of the plaintiffs by means of pipe connections have taken water from the Cajon Canal for use on their various properties for domestic purposes and the watering of stock. In its findings the trial court recognized the rights of such plaintiffs to such water and specifically designated the amount to which said plaintiffs were entitled by reason of such connections and use.

The record shows that the respondents herein, for many years, have continously, without contest or dispute, diverted, transported and applied to beneficial use one-half of the normal flow of the Santa Ana River. The diversion has been at a point upstream from the lands of the plaintiffs herein involved and the application of the water to beneficial use has been in an area below and downstream from the lands of appellants, except 100 miner's inches delivered to the Bixby Tract and water obtained by plaintiffs through the pipe connections described herein.

The judgment is affirmed except insofar as it purports to determine the riparian rights of plaintiffs other than as against the defendant corporations. These excepted portions of the judgment are reversed. Respondents to recover costs on appeal.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.