Baldwin
City of Los Angeles v. Baldwin
Opinion
lead Opinion
Wallace, J.
1. The claim set up by the city in this action—that the city is the owner of the corpus of the water in the Los Angeles Diver—finds no support in the evidence.
2. Nor does the fact that the city is a lower riparian proprietor entitle her to judgment in her favor. The defendants arc upper riparian proprietors on the same stream. In the former action between these parties, it was adjudged that the diversion of the water by the defendants, to the extent and in the manner *470 in which they then diverted it, was such as, being riparian proprietors, they might lawfully make. The conditions do not appear to be different now from what they then were. The diversion by the defendants is the same now as then, and while these conditions continue unchanged the judgment rendered in the former action operates as a bar between the parties here.
Judgment and order affirmed.
concurrence Opinion
Rhodes, J.
In the former action brought by the plaintiff against the defendants, the complaint alleged:
That the plaintiff, at a time named, “ was and still is entitled to the full and free use and enjoyment of all the water flowing in the River Los Angeles, and to all waters flowing in the ditch hereinafter mentioned, and in the full, free, and exclusive use of said ditch,” (the Canal and Reservoir Company’s ditch) ; that the plaintiff was in the actual use and enjoyment of a portion of the waters of the river—three irrigating heads—through and by means of the ditch; that the defendants did and still continue wrongfully to divert the waters from the ditch, and use and consume the same upon their own lands, to the plaintiff’s damage, etc.
It is further alleged that the Pueblo de Los Angeles was from its first settlement, about the year 1770, up to the incorporation of the City of Los Angeles, entitled to the use of all the waters of the river, and did claim and use the same; that the city succeeded to all the rights therein of the pueblo; that the Canal and Reservoir Company constructed a reservoir in the city, and a ditch leading from the river to the reservoir, which, at the commencement…