Nicoll

In the 1860’s, J.W. Nicoll constructed a three-mile-long ditch (the Nicoll Ditch) to convey water from the south fork of the Kern River to his 300.5-acre property. A 1902 judgment confirmed his right to appropriate a defined quantity of water from the Kern River through the Nicoll Ditch for use on the property. The subject property consisted of two contiguous parcels of land—an upslope parcel of 142.79 acres referred to as Nicoll Ranch, and a downslope parcel of 157.70 acres referred to as Nicoll Field. In 1933, the parcel known as Nicoll Field was foreclosed on by the bank, was later sold to the predecessor in interest of respondent Oscar Rudnick (hereafter Rudnick), and is now owned by Rudnick. Appellant John W. Nicoll (hereafter Nicoll), the grandson of J.W. Nicoll, is owner of the parcel known as Nicoll Ranch. A dispute arose between Nicoll and Rudnick concerning the Nicoll Ditch water, and an action to quiet title to the parties’ respective water rights was filed in 2006. At the trial thereof, Nicoll argued the water rights should be apportioned based on the amount of water actually used on each parcel in the years immediately preceding the bank’s foreclosure of the…