Hesperia Land & Water Co. v. Rogers

— Action to quiet title to a parcel of land situate in the county of San Bernardino. Defendant had judgment. Plaintiff moved for a new trial. His motion was denied, and he appeals from the judgment and order denying his motion.

The controversy turned on the adverse user of defendant,'for more than five years, of an irrigating ditch, constructed by him over plaintiff’s land.

The adverse user is made out by defendant, unless the contention of plaintiff that it was not continuous is maintainable.

And it is urged that the user by defendant was not continuous, for the reason that defendant only ran the *11 water in the ditch every year during the cropping season and when he needed it.

The correct rule as to continuity of user, to give a presumptive right to an easement, and what shall constitute such continuity, can be stated only with reference to the nature and character of the right claimed. The right is not abandoned to the use of a ditch to convey water for purposes of irrigation - because water does not flow in it every day in the year. The party claimant does not need the ditch every day in the year, and the -law does not require him, to constitute continuity of use, to use…