Verdugo

The plaintiffs herein appeal from the judgment and from an order denying their motion for a new trial. The defendant, E. M. Ross, appeals from certain parts of the judgment. All the appeals are presented upon the same record.

The action is by the Verdugo Cañón Water Company and some three hundred other persons, who are its stockholders, to determine and quiet title to certain water-rights claimed by them in a stream of water flowing in the Verdugo Cañón, and to enjoin the defendants from taking the water alleged to belong to the plaintiffs.

It is alleged that the plaintiffs, other than the corporation, are the owners of lands bordering on the stream, that, as such landowners, they have the right to take three fourths of its waters, flowing above and below the surface of the ground, for use on their lands in proportion to the area of the respective holdings; that the corporation was organized for the purpose of diverting said waters from said stream and distributing them to the plaintiffs and other persons entitled thereto, that it has constructed works, pipes, and ditches for that purpose, and is now engaged in said diversion and distribution; and that the defendants claim…

I concur in the judgment and generally in the opinion of Justice Shaw. I share his conviction that there is but one subsurface stream within the canon, but in my opinion it is not very material whether there is one or two. In either case I think that all the owners of the Canon tract, and of the lower tract, have a right in common to pump from the subsurface stream each his just proportion of the subsurface flow, irrespective of its effect upon the surface flow. That just proportion was originally equivalent to the proportion of the irrigable area of each subdivision to the irrigable area of the whole—modified, perhaps, by the greater or less need of particular tracts in respect to artificial irrigation. By convention, by prescription, and possibly by other means, the rights of particular subdivisions may of course have been enlarged or diminished.

There is nothing in any of our previous decisions which conflicts with the right of the owner of land overlying an underground stream to pump a reasonable share of the underground flow to the surface, and apply it to the surface for irrigation, even though it may diminish the surface flow of a stream breaking out below. In doing so he…