Hannah

Plaintiff Mrs. Kate H. Hannah is the owner of approximately a section of land in Tulare County subject to a $50,000 mortgage held by the Regents of the University of California. Through it runs the Kaweah River, from which defendant Harley Smith has for many years diverted water by means of a dam located on plaintiff’s land and a ditch known as the Hamilton Ditch, which also runs through plaintiff’s property. The Hamilton Ditch has been in use since about 1860, and the trial court found that the dam has been in use for over twenty years. The dam in existence before 1920 was built of rock, but in that year it was replaced by a cement dam on the same site. By 1925 the latter had sunk into the sand of the river bed and was replaced by another cement dam on the same site. In 1928 and 1929 defendant J. W. C. Pogue purchased the land served by the ditch and entered into a contract to purchase the ditch and its appurtenances.

In 1936 the river washed round the north end of the dam. Defendant Pogue then entered plaintiff’s land and repaired the dam with dirt and branches from the surrounding area. Plaintiff brought suit and obtained a temporary order restraining defendant from entering…