Pabst v. Finmand
211 P. 11, 1922 Cal. LEXIS 275, 190 Cal. 124 (1922)
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Rule of Law:
A prescriptive right to water can only be acquired by a use that is adverse and hostile, which requires an actual invasion of another's water rights. An upstream riparian's use is presumed permissive and not adverse to a downstream riparian unless it causes injury or provides clear notice of a hostile claim, whereas any use by a non-riparian is considered immediately adverse to all downstream riparian owners.
Facts:
- Eagle Creek flows through Modoc County and splits into a north and south fork.
- The Priors' land is situated on the north fork, downstream from the land of N.H. Finmand.
- Charlie Lee Pabst's land is situated on the south fork, downstream from the land of N.H. Finmand.
- N.H. Finmand diverted water from the south fork for use on his riparian land.
- For many years, N.H. Finmand's use of the water did not interfere with the supply available to Pabst, who always had sufficient water until two years prior to the lawsuit.
- H.H. Finmand's land is non-riparian, meaning it does not border Eagle Creek.
- H.H. Finmand diverted water from the main channel of Eagle Creek, before the fork, through the 'Gee' and 'Grider' ditches to irrigate his non-riparian land.
- The Priors and Pabst settled on their respective lands before H.H. Finmand began his appropriation of water through the Gee ditch.
Procedural Posture:
- Charlie Lee Pabst and the Priors filed a quiet title action against H.H. Finmand and N.H. Finmand in the trial court of Modoc County, California.
- The trial court found in favor of the defendants, the Finmands.
- The court's judgment awarded N.H. Finmand a prescriptive right to 300 miner's inches of water and H.H. Finmand a prescriptive right to 400 miner's inches.
- The plaintiffs, Pabst and the Priors, appealed the trial court's judgment to the Supreme Court of California.
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Issue:
Does a water user acquire a prescriptive right against a riparian owner by using a specific quantity of water for the statutory period, without providing notice of a hostile claim or actually interfering with the riparian owner's use?
Opinions:
Majority - Unauthored (Per Curiam)
No. To establish a prescriptive right to water, a claimant's use must be adverse, meaning it must invade the rights of another user. For N.H. Finmand, a riparian owner, his use was not adverse to the plaintiffs. Against the Priors (upstream), N.H. Finmand's downstream use on a separate fork could not invade their rights. Against Pabst (downstream), his use was not adverse because it did not interfere with Pabst's use; a lower riparian owner is entitled to presume an upper riparian's use is a valid exercise of their own correlative right, not a hostile claim, unless it causes an actual deprivation of water. In contrast, for H.H. Finmand, a non-riparian owner, any diversion of water is an immediate invasion of the rights of all downstream riparian owners, who are entitled to the full, undiminished flow as against non-riparians. Therefore, H.H. Finmand's use was adverse and could establish a prescriptive right. However, the judgment is reversed because the Finmands failed to meet their burden of proving the specific quantity of water that was continuously and beneficially used, and the amount awarded was 'exorbitant' and unsupported by evidence of reasonable necessity.
Analysis:
This case clarifies the critical element of 'adversity' needed to establish a prescriptive water right in California, creating different standards based on the relationship between the parties. It establishes that between riparian owners, adversity requires actual interference or notice, protecting downstream users from losing rights by an upstream user's seemingly normal diversions. Conversely, it solidifies the principle that any diversion by a non-riparian is inherently hostile to all riparian owners, making it easier for them to establish prescriptive rights but also easier for riparians to seek an injunction. The decision also reinforces the claimant's strict burden of proof to establish not just use, but the specific quantity of water that was continuously and beneficially applied for a necessary purpose.
