Opinion
Rehearing Granted July 18, 1929. In Bank.
Action by the City of San Diego against the Cuyamaca Water Company and others, wherein the City of El Cajon and others intervened, and wherein defendants filed a cross-complaint. From the judgment, all parties to the action appeal.
Affirmed in part, and in part reversed.
Appeal from Superior Court, San Diego County; M. W. Conkling, Judge.
COUNSEL
James O’Keefe, Shelley J. Higgins, and Arthur F. H. Wright, all of San Diego, and Hunsaker, Britt & Cosgrove, of Los Angeles, for appellants.
Crough & Sanders and Sweet, Stearns & Forward, all of San Diego, Philip Storer Thacher, of El Cajon, and E. V. Winnek, of San Diego, for respondents.
OPINION
RICHARDS, J.
This action was instituted by the city of San Diego, a municipal corporation, having for its purpose the determination of the question of its title to certain rights in and to the waters of the San Diego river to which the original defendants in said action were asserting and exercising certain adverse claims. The precise nature of this action was aptly described in certain earlier appeals to this court. In the case of Cuyamaca Water Co. v. Superior Court, 193 Cal. 584, 588, 226 P. 604, 605 (33 A. L. R. 1316), it was thus stated: ‘In the pending quiet title action it will not, of course, be determined that the city is or is not entitled to any particular quantity of water. If the litigation terminates favorably to the plaintiff, the only right which will be established and determined to be vested in the city will a right to the water and the use thereof prior and paramount to the defendants’ rights therein, and then only to the extent necessary for the needs of the city and its inhabitants. The amount needed is necessarily uncertain and conjectural and dependent upon conditions such as rainfall and other established sources of supply. The subject matter of the action is the establishment of the priority of right, and not the quantity of water to be taken.’ In the case of City of San Diego v. Andrews et al., 195 Cal. 111, 231 P. 726, which was a proceeding in mandamus to compel the respondent judge of the superior court of the county of San Diego to proceed to hear and determine the present cause, this court restated in substance the purpose of the instant case. The importance of the foregoing clear concept of the nature and purpose of the present action will appear as we proceed with the consideation of the several issues involved therein. The original defendants in this action were Cuyamaca Water Company, a corporation, Cuyamaca Water Company, a copartnership, and certain individuals and the survivors and personal representatives of the members of said copartnership. The action was commenced in the early part of the year 1923, the amended complaint therein being served and filed on the 9th day of June, 1923. The defendants united in filing their demurrer to said amended complaint on June 18, 1923, said demurrer being both general and special and being based upon thirteen alleged grounds of demurrer. The demurrer was upon hearing overruled; whereupon and in December, 1923, said defendants served and filed their answer, embracing 17 separate defenses presented by the defendants jointly, and also a number of special defenses urged on the part of certain of said defendants invididually. The defendants also presented and filed at the same time their cross-complaint, wherein they asserted affirmatively the particular foundation of their adverse claims to certain portions of the waters of the San Diego river over which the plaintiff was undertaking to have established its alleged prior and preferential right. To the defendants’ answers and cross-complaint the plaintiff on December 21, 1923, served and filed its demurrer upon 42 specified grounds. Thereafter and while said demurrer was pending and undisposed of, certain other parties appeared separately in the action with applications for leave to intervene. These were one Carroll H. Smith, who in his proffered complaint in intervention alleged himself to be a resident, citizen, and taxpayer of the city of La Mesa in the county of San Diego, and also an owner or property within the La Mesa Lemon Grove & Spring Valley Irrigation District in said county, which said city and said irrigation district had for the sole source of water supply of each the waters of the San Diego river, which said waters they and each of them were receiving under and by virtue of an agreement with the defendant Cuyamaca Water Company, a copartnership, with which copartnership and the surviving members thereof the said petitioner wished to join in resisting the claim of prior and preferential rights thereto asserted by said plaintiff. The said Carroll H. Smith also alleged himself to be the owner of certain lands within the so-called Ex-Mission Rancho and to be thereby entitled to certain paramount and exclusive rights to the use of the waters of said river derived from grants of said rancho to his predecessors made by and under the Spanish crown. The La Mesa Lemon Grove & Spring Valley Irrigation District also and at the same time presented its application for leave to intervene in the action, basing its alleged right so to do upon its proffered complaint in intervention, wherein were set forth substantially the same averments as were embodied in the complaint in intervention of said Smith. In addition to these, the city of El Cajon, a municipal corporation, situate in the county of San Diego, also petitioned for leave to intervene, making substantially the same allegations as to the source and right of water supply from the waters of the San Diego river as were set forth by said other applicants for leave to intervene. The court upon a hearing permitted the several parties to file their respective complaints in intervention, and in due course the plaintiff, city of San Diego, presented and filed its several demurrers thereto. Thereafter the demurrers of the plaintiff to the answer and cross-complaint of the original defendants and also to the complaints in intervention of said several interveners were submitted to the trial court for decision; and the court in ruling thereon sustained the said plaintiff’s demurrer to certain specified portions of the original defendants’ answer and cross-complaint without leave to amend, and also sustained the demurrer of the plaintiff to certain other specified portions of said defendants’ answer and cross-complaint with leave to amend. The trial court also at the same time overruled the plaintiff’s demurrers to the several complaints in intervention. The effect of these several rulings by the trial court was that of determining as a matter of law that the city of San Diego had by virtue of its incorporation and right of succession become the successor and owner of those certain prior and preferential rights to the waters of the San Diego river with which, from its inception, the Pueblo of San Diego, as established in the year 1834, had become invested by virtue of its formation under the laws of Spain and Mexico. The question as to whether as a matter of law the plaintiff, city of San Diego, had originally become invested with these prior and preferential rights in and to the waters of the San Diego river by virtue of its succession to whatever rights of that nature existed in the Pueblo of San Diego, is thus presented upon this appeal, involving as it does the correctness of the aforesaid rulings of the trial court touching that point upon demurrer. As to the issues presented by those other specified portions of the original defendants’ answer and cross-complaint, and which involve the question as to whether the plaintiff had lost its original superior right to the waters of the San Diego river, derived from said source by prescription, or by laches or by estoppel operating in favor of some or all of said defendants and their successors in interest, the trial court permitted said defendants to present amended pleadings, and upon their doing so overruled the plaintiff’s later demurrers thereto; and having already overruled the plaintiff’s demurrers to the several complaints in intervention, and the interveners having also amended their pleadings so as to embrace and conform to the defendants’ amended answer and cross-complaint, and the plaintiff having answered the interveners’ complaints and the amended cross-complaint of the defendants, the cause was thus brought to issue and proceeded to trial upon the disputed questions of fact thus presented. The cause was tried without a jury; a large mass of evidence was presented involving the testimony of many witnesses and the introduction of numerous exhibits, thus creating a record of unusual proportions, upon which was superimposed briefs and arguments of counsel evincing extraordinary effort, diligence and research. The cause was finally submitted to the trial court for its decision, and in due course the findings and conclusions of law of the trial court were filed, the correctness and sufficiency of which furnish the weighty burden laid upon this court in its determination of the merits of the several appeals, which have been taken and are being prosecuted by all of the parties to this action. By the findings, conclusions of law, and judgment based thereon of the trial court it was found and determined:
‘That about the year 1834 there was founded, and until about the year 1850 there continued to exist upon what is now the site of The City of San Diego, a certain Mexican pueblo then designated and ever since known as the Pueblo of San Diego; that the location and site of said Mexican Pueblo of San Diego at the time the same was founded, was, ever since had been, and now is, situated and located upon the banks of a certain unnavigable river or stream, then, ever since and now known as the San Diego River; that said stream at the time of the organization of said Pueblo of San Diego and at all times thereafter during its existence flowed into and through said pueblo, and the banks and bed of said stream from the mouth to the easterly territorial limits of said pueblo a distance of approximately five miles, were located and lay entirely within the territorial limits and formed a part of the lands and waters of said Pueblo of San Diego.
‘That said Pueblo of San Diego and the inhabitants thereof from its organization during the entire time of its existence, enjoyed, asserted and exercised a preference or prior right to the use of the waters of said San Diego River for the benefit of said pueblo and the inhabitants thereof.
‘That said preference or prior right of said pueblo and of the inhabitants thereof to the use of all the waters of said river necessary to supply the domestic wants of the inhabitants of said pueblo, to irrigate the lands thereof, and for other municipal purposes within the general limits of said pueblo, was a right, and the distribution of said waters for such purposes by the pueblo authorities was a trust created, imposed and recognized by the laws, orders and decrees of the government of the Kingdom of Spain and the Republic of Mexico.
‘That the plaintiff herein, The City of San Diego, was incorporated on or about March 27, 1850, and thereupon became the successor and ever since has been the successor of said Mexican Pueblo of San Diego, and as such successor to said Mexican Pueblo succeeded to and acquired all the rights and privileges theretofore held or exercised by said Pueblo of San Diego and in particular as the successor of said Mexican Pueblo of San Diego said The City of San Diego succeeded to and acquired all the rights and privileges theretofore enjoyed, asserted and exercised by said Pueblo of San Diego in and to the waters of said San Diego River; that since said incorporation said The City of San Diego, as the successor to said Mexican Pueblo, has at all times enjoyed, asserted and exercised a right of priority in and to the use of all the waters of said San Diego River necessary or convenient for the use of said The City of San Diego and the inhabitants thereof, and has not in any manner, nor to any extent, surrendered, forfeited or abandoned said rights, save and except in the manner and to the extent hereinafter found and declared.
‘That the San Diego River is an unnavigable natural stream of water located wholly within the county of San Diego, state of California, and takes its rise in the Cuyamaca Mountains in said county on the southerly and westerly slopes thereof, and flows in a southwesterly direction approximately fifty miles from its source until it reaches the easterly boundary of The City of San Diego, formerly the easterly boundary of said Pueblo of San Diego, from which point said river flows westerly through said The City of San Diego a distance of approximately five miles, discharging its waters into the Pacific Ocean through Mission Bay in said city and county.’
From the foregoing findings and judgment of the trial court, omitting therefrom the expressed exceptions, the defendants and interveners have taken and prosecuted their appeal, and they present exhaustively several most interesting propositions in support thereof. They argue as the first of these that the trial court was in error in holding as a matter of law that the Pueblo of San Diego by virtue of its organization as such became entitled, under the Spanish and Mexican laws, to any prior or preferential right to the waters of the San Diego river passing above and underground through the allotted leagues which were to constitute the area of the pueblo lands. In support of this argument counsel for said appellants would have us go back even prior to the Christian era and consider in our review the history of civilization in so far as the same relates to the slow, involved, and obscure development of the civil and religious institutions of ancient and medieval Spain. If for the first time in the history of our California jurisprudence such a review was being asked, or such an elaborate argument as these appellants now urge was being presented, we might be disposed to consider as persuasively as we have now read interestingly the pages upon pages of Spanish history collated in that behalf. But the difficulty with the situation which appellants’ diligent counsel now seek to have us reconsider is that the same question has already and on several occasions, early and late, been presented to and passed upon by this court in decisions which are uniformly adverse to the appellants’ present contention. While there were other and earlier cases in the courts of this state and even in the Supreme Court of the United States which touched upon the subject of the formation of pueblos under the laws, institutions, and regulations of Spain applicable to the settlement and development of lands in what had become known as ‘New Spain and the Indies,’ the great leading case upon the subject applying these laws, institutions, and regulations particularly to those pueblos which had come into existence in California under both the Spanish and Mexican dominions, is the case of Hart v. Burnett, 15 Cal. 530 to page 624, wherein Mr. Justice Baldwin, Mr. Chief Justice Stephen J. Field concurring, discussed at great length and with much learning the nature and extent of the rights which inhered in such pueblos by virtue of their foundation in those lands which lay within their immediate vicinage and beyond this to the extent of the additional four leagues of surrounding lands allotted to such pueblos as a result of their formal establishment as civil governments or quasi municipalities. It is not necessary to further refer to this leading case in other terms than those to which it has been referred to and commented upon by later decisions of the courts of this state and of the United States. In the case of Townsend v. Greely, 5 Wall. 326, 336, 18 L.Ed. 547, the effect of that earlier decision was briefly but clearly stated by Mr. Justice Field, who wrote the latter decision; and his language as used therein was quoted approvingly by this court in the case of Hale v. Akers, 69 Cal. 160, 166, 10 P. 385, which was presently to hand down its decision in the case of Lux v. Haggin in the following month of the same year and which is reported in 69 Cal. 255, 454, 4 P. 919, 10 P. 674. In this latter decision, which is the longest and most exhaustively treated cause in the history of California jurisprudence, Mr. Justice McKinstry, who wrote the opinion, went over the entire ground of the land and water rights of the owners of each in California whose title thereto looked for their derivation to the laws, institutions, and regulations of Spain and Mexico. In the course of his most learned and comprehensive dissertation he referred approvingly to the decision in Hart v. Burnett, supra, as to the right and title which the pueblo had to land within its general limits. The court then proceeded to say: ‘By analogy and in conformity with the principles of that decision, we hold the pueblos had a species of property in the flowing waters within their limits, or ‘a certain right or title’ in their use, in trust to be distributed to the common lands, and to the lands originally set apart to the settlers, or subsequently granted by the municipal authorities. It may be conceded that such authorities were not authorized to make concessions to individuals of the perpetual and exclusive use of portions of the waters, without reference to the needs of the other inhabitants; or that such concessions would be an abuse of the trust. But they had a species of right or title in the waters and their use, subject to the public trust of continuously distributing the use in just proportion. * * * Each pueblo was quasi a public corporation. By the scheme of the Mexican law it was treated as an entity, or person, having a right as such, and by reason of its title to the four leagues of land, to the use of the waters of the river on which it was situated, while as a political body, it was vested with power, by ordinance, to provide for a distribution of the waters to those for whose benefit the right and power were conferred.’ After quoting certain passages from Eschriche, an eminent Spanish authority upon the subject, the court further proceeded to say: ‘From the foregoing it appears that the riparian proprietor could not appropriate water in such manner as should interfere with the common use or destiny which a pueblo on a stream should have given to the waters; and semble that the pueblos had a preference or prior right to consume the waters even as against an upper riparian proprietor.’ The court, however, suggested that it ‘is not necessary here to decide that the pueblos had the preference above suggested. Nor is it necessary here to speak of the relative rights of two or more municipalities on the same stream.’ In the next and later case of Vernon Irrigation Co. v. Los Angeles, 106 Cal. 237, 251, 39 P. 762, the question directly arose. In that case the Vernon irrigation district, a corporation, owning a tract of land riparian to the upper reaches of the Los Angeles river, commenced its action to enjoin the city of Los Angeles, which was and is the successor of the pueblo of Los Angeles, and certain other defendants, from so diverting the waters of the Los Angeles river as to interfere with the plaintiff’s riparian right therein. The city of Los Angeles by its answer put forth the claim that by virtue of its succession to the rights of the pueblo of Los Angeles, founded in 1786, it possessed the prior and preferential right to take all of the waters of the Los Angeles river. The trial was prolonged and the findings of the trial court voluminous, in the course of which it was found and decreed that the city of Los Angeles, by virtue of its succession to the rights of said pueblo, was the absolute owner of all of the water flowing in the Los Angeles river for the use of its inhabitants and for all other municipal purposes. From the judgment in its favor based upon this finding, the plaintiff took an appeal and thus presented to this tribunal for determination the correctness of the aforesaid finding of the trial court. This court, Mr. Justice Temple writing the opinion, gave its most careful and exhaustive consideration to the determination of this question, in the course of which he quoted exhaustively from the Spanish and Mexican law, approving the principles enunciated in the case of Hart v. Burnett, supra, and which were adopted by this court in Lux v. Haggin, supra, and quoted also with approval the language of the latter case above referred to and wherein it had been suggested, though not in that case found necessary to be decided; that the pueblos had a preferred right to the waters of rivers flowing through their lands, which could be asserted to the extent needed to supply the wants of their inhabitants. There were other questions presented in that case not necessary to be here considered, but it must be conceded that the question as to the prior and preferential right of a pueblo to the waters of a river passing through it to the extent above indicated was therein squarely presented and fully upheld by the terms and scope of that decision, and that the later formed municipality organized as the successor of the pueblo fully succeeded to these rights to which the pueblo had become entitled by virtue of its creation under the Spanish and Mexican laws. The next case wherein this question arose was that of City of Los Angeles v. Pomeroy, 124 Cal. 597, 650, 57 P. 585, which was an action in which the city of Los Angeles undertook to condemn certain lands lying in the San Fernando valley along the Los Angeles river and to which stream said lands were riparian, for the purpose of utilizing the same, collecting and conserving the waters of said stream for delivery to the main supply pipe and distributing system of said city. The plaintiff based its claim of right to condemn the land in question for the utilization of its asserted right to the waters of said river, in part at least, upon the averments of its amended complaint to the effect that the city, as the successor of the pueblo, was the exclusive owner of all of the waters of said river for the purpose of supplying its inhabitants with water for domestic uses and also of supplying water for the irrigation of the irrigable lands embraced in the four square leagues of the pueblo, and for other municipal uses. These averments were traversed by the defendants. The cause was tried before a jury, to which the court gave the following instruction: ‘The city of Los Angeles is situated on the river below these lands, and is the owner of the right to take from the Los Angeles river all the water that is reasonably necessary to give an ample supply for the use of its inhabitants and for all municipal uses and purposes for which the city may require water. This right is measured by the necessity, and if the needs increase in the future the right will expand to include all that the needs require. This right of the city is paramount and superior to the rights of the defendants in the waters of the river .’ This court, upon appeal, Mr. Chief Justice Beatty writing the opinion, fully sustained said instruction in so far as it correctly stated the paramount and superior rights of the city to whatever expanding uses of the waters of said river the pueblo by virtue of its formation possessed, and in so doing expressly approved in principle the case of Vernon Irr. Co. v. Los Angeles, supra; the court, however, held that the instruction was erroneous in according to the city of Los Angeles greater rights to the waters of said river than those which, as the successor of the pueblo, it had received from it. The next case in which the same question controversially arose was that of City of Los Angeles v. Los Angeles Farming & Milling Co., 152 Cal. 645, 93 P. 869, 1135, wherein the city of Los Angeles asserted its prior and paramount ownership of the use of the waters of the Los Angeles river from its source to the city and from the surface to bedrock in so far as it was necessary to supply water for the use of its inhabitants, by virtue of its successorship to the pueblo and against the asserted riparian rights of the defendant, based upon its ownership of riparian lands lying along said river some ten miles above said city. The trial court accorded the plaintiff such right, and upon appeal this court, Mr. Justice McFarland writing the opinion, after stating that the only question in the case was to whether ‘under the general law of the locality the old pueblo of Los Angeles, and the respondent herein, as its successor, had and has as against appellant the prior and paramount ownership of the use of so much of the water of the Los Angeles river as is necessary for its inhabitants and for general municipal purposes,’ proceeded to state that ‘this question need not be discussed as an original one, for it has been answered in the affirmative by former decisions of this court.’ The cases which are above referred to are there reviewed at length and expressly approved, and after such review and approval it is said: ‘The foregoing decisions are determinative of the prior and paramount right of the pueblo, and of plaintiff as its successor, to the use of the water of the river necessary for its inhabitants and for ordinary municipal purposes. The question as to what extent this right goes, a question somewhat considered in the Pomeroy Case— that is, for the use of the inhabitants of what territory, and for what municipal purposes can the water be taken as against a riparian owner— does not arise and need not be considered in the case at bar.’ Neither, it may be said, does this latter question arise in the present case. The law and the attitude of this court toward the law upon this subject stood as above stated during the twenty years which preceded the presentation of the same question to this court in the case of Cuyamaca Water Co. v. Superior Court, supra, which was a prior appeal in the instant case, and in which the issues primarily involved were those quoted from in that decision in the earlier stages of the present opinion.
The appellants herein contended in the trial court, and here contend, that they were and are entitled to have reconsidered and relitigated the question as to whether or not a Spanish or Mexican pueblo organized in California under the laws, institutions, and regulations of Spain or Mexico during their successive governments thereof, became possessed by virtue of such laws, institutions and regulations of a prior and paramount right to the use of the waters of rivers or streams passing through and over or under the surface of their allotted lands so far as may be or become necessary for the pueblo and its inhabitants, and as to whether or not a municipality organized under American rule as the successor of such pueblo succeeded to such pueblo rights. We are of the opinion that by virtue of the foregoing long line of cases, and particularly of the decision of this court in the case of the City of Los Angeles v. Los Angeles Farming & Milling Co., supra, wherein the cases preceding it were specifically reviewed and held to be determinative of this question, the subject is no longer an open one for further consideration and review before this court, and that by said decisions, so long and uniformly followed and adhered to, the proposition that the prior and paramount right of such pueblos and their successors to the use of the waters of such rivers and streams necessary for their inhabitants and for ordinary municipal purposes, has long since become a rule of property in this state, which at this late date in the history and development of those municipalities which became the successors of such pueblos we are not permitted, under the rule of stare decisis, to disturb. In so deciding we are not unmindful of the fact that counsel for the appellants herein have strenuously asserted throughout that the pueblo of San Diego was never so organized and established as such so as to have become entitled to a prior or paramount or any right or rights whatever in the waters of the San Diego river. In so far as this question was raised and presented by the pleadings in the trial court as a question of fact, we are satisfied from an examination of the extensive record herein that the evidence touching this subject was, to say the utmost of it, conflicting in such of its material and substantial aspects as to render the conclusions of the trial court in that aspect of the case binding upon this tribunal. We are also not unmindful of the contention elaborately presented and argued by counsel for appellants that the pueblo of San Diego, even if conceded to have been regularly established as such in the year 1834, never became entitled to any prior, preferential, or other rights in or to the waters of the San Diego river, for the reason that long prior to the alleged establishment of said pueblo the entire and exclusive right to the use and benefit of the waters of said river had been granted by the viceroy of Spain to the Mission of San Diego. In support of this contention the appellants introduced in evidence before the trial court and have here presented for our inspection and interpretation a photostatic copy of such purported grant. It bears the date, according to the translation thereof with which we have been kindly furnished, of the 17th of December, 1773, and the signature, by secretary, of Bucarely, the then viceroy of the King of Spain over Mexico. It purposts to approve the removal of the Mission of San Diego from its former location near the Presidio on the shore of the bay of San Diego to a new site several miles up the arroyo, and in order to facilitate such removal and the development of the then small and in a sense still speculative and quite problematical success of the first mission established in Alta California, it proceeded to suggest the cultivation of its surrounding lands through the use of water from the stream, and for that purpose directs the ‘Reverend Fathers of the Mission to acquire and administer this concession and Royal grant (privilegio) to the waters of this arroyo referred to for the common benefit of all the nation, whether Gentile or converted, who dwell today or in the future in the province of the Mission of San Diego de Acala. This concession and the fruits also shall be held (ser tener) as to these children and their children and successors forever.’ The document proceeds to state in immediate connection with the foregoing that: ‘Although a Presidio is thus placed near to the entrance of this stream near to the Port of San Diego there can be no prejudice in this respect because there is always sufficient water for the service of the soldiers, and in the topography and report of Sr. Don Miguel Castro there is evident to the south of this place a worthy river and a torrent smaller in flow and some smaller arroyos from which to drain (disaguas) the Rancho del Rey where their cattle may wander under the vigilant eye of the herdsmen.’ We are loath to believe that the viceroy of Mexico, framing this document in the then far distant capital of New Spain, ever intended by its terms to confer upon this primitive and as yet largely experimental mission settlement any such enlarged, prior, paramount, or exclusive rights in and to the waters of the San Diego river as the appellants herein claim for it. Its language does not so import and it may be said to be doubtful, to say the least of it, whether even the viceroy of the Kingdom of Spain in making such a concession would not have done violence to those laws, institutions, and regulations of Spain which provided for the establishment of civil governments of the sort known as pueblos in new lands so as to take away from these the whole of those water rights in rivers traversing their allotment of land which would be essential to the cultivation of such lands when occupied by civil settlement.
We learn from public history, of which we take judicial notice, that the civil settlement of Alta California was coequally contemplated by those who were officially in charge of the primary expedition which only four years before this purported grant had been put forth and provisioned for the discovery and occupancy of Alta California through the joint effort of Padre Junipero Serra and of Jose de Galvez, visitor general of New Spain. In the broad and detailed plans and express decrees of the latter, precise provision was made for the foundation and development of presidios, pueblos, and missions in the as yet unknown region, and these three forms of occupation were expected, as nearly as possible, to proceed simultaneously as a result of the joint military, civil, and religious expedition then about to set forth. It may be fairly assumed that these joint settlements designed to be established simultaneously were also intended to function harmoniously and not to become involved in disputes over the respective jurisdiction and property rights of each. That such did not prove to be the consequence in all cases is beside the mark, since we do not in this case find it necessary to finally determine the scope and intent of Bucarely’s concession to the Mission San Diego in respect to its new location. The reason we are not called upon to do so is that according to evidence educed herein the Mission of San Diego was in or about the year 1834 secularized by Governor Figueroa of Alta California and his official coadjutors purporting or pretending to act in so doing under decrees of the Mexican government enacted in the preceding year. It is not necessary for us to herein determine whether or not the secularization of the Mission San Diego, put into effective operation in that and the following year or two, was in all or any of its aspects lawful. It is sufficient to note that by the consensus of both the civil and ecclesiastical historians of the time and event it was successful and that within a very few years at most the spoliation of the mission was so far completed that its productive activities had ceased, its Indians and its priesthood had departed, the former to relapse into their aboriginal condition and the latter to seek and find other fields of labor. The mission life in fact was destroyed and the mission lands which by virtue of its secularization were to become part of the public domain were within a decade thereafter conveyed by private land grant executed by Governor Pico to one Santiago Arguello, whose grant of the same was subsequently confirmed by the board of commissioners for the settlement of private land claims created by the United States government in 1851, and a patent therefor issued to said grantee a few years later. It has not been seriously, as it could not be successfully, contended herein that any of the original rights of the mission or of its founders or their successors derived from Bucarely’s concession either survived the secularization of the mission or passed to Arguello or his successors by virtue of his private land grant and the confirmation thereof by the government of the United States. It follows necessarily that upon the establishment of the pueblo of San Diego in the year 1834 as found by the trial court it became invested with whatever land and water rights it was entitled to under the laws, institutions, and regulations of Spain and Mexico and that in the possession and continued exercise of those rights it was nowise impeded or impaired by the existence of any similar or even superior rights in the Mission of San Diego which either had ceased or would presently cease to be. There is therefore no merit in the contention of the defendants herein that they or any of them by virtue of their occupancy of the former mission lands are to be held the successors of whatever rights the mission had, since the entire right and title of the present occupants of such lands relates as to its origin solely to the Arguello grant.
We have thus, we think, disposed of every vital question presented by the defendants as appellants from that portion of the judgment of the trial court as to which the plaintiff herein is the respondent, and it only remains for us to consider and dispose of those portions of said judgment as to which all of the parties herein have prosecuted their separate appeals. In that portion of the findings of the trial court which are quoted in the earlier passages of this opinion, it will be seen that the prior and preferential rights of the city of San Diego as the successor of the pueblo were made subject to certain exceptions to be in said findings subsequently set forth. In these, its later findings, the trial court deals with those special defenses of said defendants and also of said interveners wherein it is pleaded and sought to be proven that, whatever prior or preferential rights in and to the waters of the San Diego river the city of San Diego had or acquired by virtue of its succession to the pueblo of San Diego, it has subsequently and either wholly or partly lost by prescription or by laches or has become estopped to assert as against these defendants and interveners through certain alleged affirmative action on the part of itself or its authorized officials.
On the threshold of the discussion as to the nature of these several defenses and, if available at all to the defendants, the extent to which they or any of them should be given application in the instant case, it will be well to recur to the statement made by this court upon the former appeal in Cuyamaca Water Co. v. Superior Court, 193 Cal. 584, 588, 226 P. 604, 33 A. L. R. 1316, and which is quoted in the early pages of the present opinion, and from which it will appear that the plaintiff herein is not seeking by this action to have it determined that it is entitled to any particular quantity of water, based upon its prior or present use of the waters of the San Diego river, to the extent of its asserted prior and paramount rights therein. The plaintiff in its pleadings asserts no such use of said waters in the past by either its predecessor the pueblo or itself, further than such use thereof under such claim of right as was from time to time necessary for the needs of the pueblo and its successor the city. On the other hand, the defendants and interveners herein have both by their pleadings, their proofs, and their argument, asserted and shown that neither the pueblo nor the city of San Diego ever did, prior to the institution of the present action, make actual use of any considerable amount of the waters of the San Diego river for any public or municipal or other purpose whatever, and that during the entire history of both pueblo and city the larger part of the waters of the San Diego river, except for the uses thereof undertaken by the defendants and interveners herein, would have flowed through and past said plaintiff and gone unused to the sea. In the findings of the trial court no finding is made and no estimate given as to the quantity of the waters of said river which the plaintiff or its predecessor had made use of, nor is there to be found either in the findings of the court or in the evidence in the case anything tending to establish that whatever actual uses or diversions of the waters of said river the defendants and interveners herein, or any of them, are shown to have made, ever resulted in a diminution in any appreciable degree of the amount of flow of the waters of said river which the plaintiff herein or its inhabitants were from time to time putting to actual use under or in pursuance of the exercise of the city’s aforesaid prior and preferential right to the waters of said river. It is important to thus bear in mind the purposes of this action and the pleadings and proofs therein in any consideration of the merits of the defenses of prescription, laches and estoppel urged by the defendants and interveners herein. In dealing with these defenses it is also important to bear in mind the nature of each and the differences, if any, between them.
The nature of the right claimed to have been acquired in the waters of a flowing stream by prescription rests as a prime essential upon an adverse use thereof by the claimant under a claim of right which has, to the extent thereof and for the required term of years, been acquiesced in by the person or persons otherwise entitled to the ownership and enjoyment of the waters thus adversely abstracted from said stream and to enforce these rights by appropriate action. It is needless to cite authorities to a proposition thus deeply grounded in the law of waters; but there are certain instructive cases which bear directly upon the situation of the parties to this action as disclosed by the record herein. The first of these is the case of Anaheim Water Co. et al. v. Semi-Tropic Water Co., 64 Cal. 185, 30 P. 623. This was a case which involved certain alleged conflicting riparian rights to the diversion of the waters of the Santa Ana river, which formed the dividing line between two ranchos, from the owners of one of which the plaintiffs had derived by grant the right to use a certain definite amount of the waters of said river, to which the lands of the grantor were riparian, and of the other of which the defendant was the owner and was entitled to all of the riparian rights incident to such owner unless the same or some portion thereof had been lost by prescription. The trial court found that the plaintiff for many years had openly, notoriously, and continuously appropriated and used the waters of said river to the full capacity of their ditch, claiming the right so to do adversely to all the world; but the court also found that prior to a year or so before the commencement of the action such diversion and use on the part of the plaintiffs, even though thus claimed to have been done adversely, had never interfered with the use which the defendant during the same time was making of said waters, and that with the exception of the aforesaid brief time before the commencement of the action there had at all other times been sufficient water flowing in the river to supply the wants and demands of all of the parties to the action. In dealing with that situation this court (page 192 of 64 Cal. [30 P. 625]) said: ‘In the face of such facts as these, how can we be expected to hold that as against the owners of the Santiago Rancho the plaintiffs have established any prescriptive right? In order to establish a right by prescription, the acts by which it is sought to establish it must operate as an invasion of the right of the party against whom it is set up. The enjoyment relied upon must be of such a character as to afford ground for an action by the other party. This is thoroughly settled. Now it is very clear that while there was sufficient water flowing in the river to supply the wants and demands of all the parties, its use by one could not be an invasion of any right of any other; and as the court below found, as a fact, that until within a year or two prior to the commencement of the action, there was sufficient water flowing in the river to supply the wants and demands of all the parties, it is plain that the plaintiffs as against the owners of the Santiago Rancho have acquired no right by prescription.’ The next case to which we would refer is that of Faulkner v. Rondoni, 104 Cal. 147, 37 P. 883, wherein (without stating the facts of the case) we find that the doctrine above announced was expressly approved; the trial court having found that during the period claimed to have given rise to the prescription there had been sufficient water in the stream for the uses of all of the parties to the action and that therefore there had been no such invasion of the rights of one which could form the basis of a prescriptive right in the other. In the quite recent case of Pabst v. Finmand, 190 Cal. 128, 211 P. 11, the doctrine above quoted from Anaheim Water Co. v. Semi-Tropic Water Co., supra, was again approved; the court saying that the use by the adverse claimant ‘was not hostile unless there was an actual clash between the rights of the respective owners. While there was sufficient water flowing down the stream to supply the wants of all parties, its use by one was not an invasion of the rights of the other.’ The principle enunciated in the foregoing cases has direct application to the situation presented in the case at bar. The city of San Diego, by virtue of that prior and preferential right which it derived from the pueblo ‘to the use of all of the waters of the San Diego river necessary to supply the domestic wants of the inhabitants of said pueblo, to irrigate the lands thereof and for other municipal purposes within the general limits of said pueblo,’ has never thus far in its history possessed and is not now asserting any right of action to prevent the actual diversion of any quantity of the waters along the upper reaches of the San Diego river or its tributaries, whether undertaken by the defendants and interveners herein or their predecessors, or any other persons whatever, which has not at any particular time interfered with such exercise of its aforesaid rights in the waters of said river as from time to time in the course of its growth and history as a municipality it became possessed of. The right of said city was thus always ‘uncertain and conjectural,’ depending upon the particular needs of the city or its inhabitants at each particular stage in its development as a municipality, and it would be the height of unreason to hold that the pueblo in its primitive beginnings and the city in the infancy of its corporate life should have been bound to be continually taking arms against users of the upper waters of the stream to an extent which constituted no interference with its present use or right to use such waters at the time of such diversion. It follows that for this reason also no right by prescription exists or has ever existed in favor of these defendants and interveners or either or any of them arising out of their asserted adverse use of the waters of the San Diego river. The city is not in this action asserting a present right to any such remedy, but, on the contrary, and in the language of our earlier opinion, ‘the subject of the action is the establishment of the priority of right and not the quantity of water to be taken.’ It thus appears that the present action is not in any sense remedial but is purely declaratory in its nature and in the relief which, in so far as the plaintiff is concerned, is sought thereby.
With respect to the defense of laches which the defendants and interveners present and urge little need be said, since what has been immediately heretofore stated fully applies to such defense. The city of San Diego and its officials could not in reason be charged with laches in the assertion of something with respect to which no right of assertion existed and with respect to which no adverse invasion has thus far occurred. There would seem to be another and all-sufficient reason why the defense of prescription and of laches ought not to be available to the defendants as against the plaintiff in the present action. The right which the pueblo of San Diego and the plaintiff herein as its successor acquired in the waters of the San Diego river by virtue of the pueblo foundation was essentially a public right and, to employ the language of the findings of the trial court, ‘was a right and the distribution of such waters by the pueblo authorities was a trust created, imposed and recognized by the laws, orders and decrees of the Kingdom of Spain and the Republic of Mexico.’ In the case of Cuyamaca Water Co. v. Superior Court, supra, this court adopted the language upon this subject used in Lux v. Haggin, supra, wherein it was stated that: ‘The occupants of lands within the city, the pueblo’s successor, are beneficiaries only to the extent that they are entitled to the use of such water and at such times as accords with the laws regulating the public and municipal trust.’ In the case of Vernon Irrigation Co. v. Los Angeles, supra, it was stated, with special reference to the rights to the waters of the Los Angeles river which the city had derived from the pueblo of Los Angeles, that ‘the waters of all rivers were, under the Spanish and Mexican rule, public property * * * for the use of the inhabitants.’ If this be true, it follows necessarily that the public right and public trust which the pueblo and its successor, the city of San Diego, had in these waters in no respect differed from those other public rights and properties which the state and its various subdivisions and agencies possess and administer; and it has been uniformly held that such public rights cannot be lost nor the public trust as to their administration and exercise be destroyed either by adverse possession or by laches or other negligence on the part of the agents of the state or municipality who may from time to time be invested with the duty of their protection and administration. People v. Kerber, 152 Cal. 731-733, 93 P. 878, 125 Am. St. Rep. 93, and cases cited. The case of Ames v. City of San Diego, 101 Cal. 390-392, 35 P. 1005, will, when carefully examined, be found to fully uphold this view. We are therefore of the opinion that for the above additional reason the defenses of prescription and laches urged by the defendants and interveners herein cannot be upheld.
The defense of estoppel, however, rests upon an entirely different foundation in both law and fact from that underlying the foregoing two defenses. The defense of estoppel rests upon the doctrine that a right conceded for the purposes of such defense to exist in a party, he shall not be permitted to assert against another to the latter’s injury because of the existence and proof of certain facts and conditions which would render its assertion inequitable. The question as to the application of this well-defined legal proposition as between the parties to an action must in the nature of things depend upon the facts of each particular case. Whether the facts of this particular case are such as to permit the application of this doctrine to the plaintiff in its capacity as a municipal corporation and with respect to the latter’s ‘prior and preferential right to the waters of the San Diego river,’ as above defined, is the problem to which we must finally devote our attention. The essential facts as developed in the evidence educed herein, bearing upon this problem, are not, with certain exceptions to be noted, the subject of material dispute. The original defendants in this action were Cuyamaca Water Company, a copartnership, and certain parties alleged to be surviving members or the legal representatives of certain deceased members thereof; also Cuyamaca Water Company, a corporation, which does not seem to have much to do with the case. The evidence in the case, stated as concisely as possible, discloses that in the year 1885 the San Diego Flume Company was organized for the purpose of developing the water supply along the upper reaches of the San Diego river and its tributaries which had theretofore been undeveloped and largely unused, with a view to conserving and utilizing the same upon the region lying between the city of San Diego and the mountains, wherein that stream and its tributaries had their source, and the lands of which region prior to said time being semiarid, had been but thinly populated and little used. In the course of this development and during the next few years the San Diego Flume Company expended large sums of money, estimated by the trial court to have been in excess of $1,000,000 in the creation of dams, diversion works, pumping plants, ditches, and flumes for the diversion and distribution of said waters to an extent hereinafter to be stated. The Cuyamaca Water Company, a copartnership, ere long succeeded to the rights and property of the San Diego Flume Company, and during the intervening years between 1889 and the date of the institution of this action has augmented the expenditures, continued and extended the activities, and administered the resources thus derived from its predecessor with the resultant effect that within the wide region reached and benefited by the aforesaid development and distribution of the waters of said river, to the extent hereafter to be noted, an extensive productivity has been attained; orchards, vineyards, farms, and homes have been created, and cities and towns have been established, such as the city of La Mesa, the city of Lemon Grove, the city of EI Cajon, and other growing communities containing as a whole several thousand inhabitants and constituting prosperous centers of civic and community life, and all of which have during all the years of their creation and growth received their water supply from the waters of said river as thus developed and distributed by or through the Cuyamaca Water Company. Of recent years certain irrigation districts have been formed and are being operated within said region and one of these, to wit, the La Mesa, Lemon Grove, and Spring Valley irrigation district, has recently secured an option upon, if not actually acquired, all of the rights and properties of the Cuyamaca Water Company, and has thus become the principal party in interest in the eventuality of the present action in so far as the defendants and interveners are concerned. The legal foundation of the San Diego Flume Company and also of its successor, the Cuyamaca Water Company, rested originally in certain formal appropriations located in due course of the laws permitting the same along the course of said river and its tributaries and to an amount in the volume of water claimed to be as hereinafter stated. In pursuance of these appropriations certain quantities of said waters have been diverted and distributed to an extent also hereinafter to be designated. It would seem also that certain of the defendants put forth certain claims of right herein, depending upon their alleged ownership of certain lands riparian to said stream. During all of the earlier years of the activities of the San Diego Flume Company and of the Cuyamaca Water Company in the appropriation to the extent thereof of the waters of said river and also of the diversion and distribution thereof to the volume and extent thereof, and during all of the earlier years of the settlement, development, and growth of the region and of the several corporate communities therein as a direct result of the application of said waters to said otherwise semiarid region, the city of San Diego regarded quiescently, and in fact it may be said approvingly, the foregoing development of its ‘back country’ through the aforesaid appropriation, diversion, and use of the waters of the San Diego river. It had every reason so to do and it had no reason to do otherwise, since its own advancement, progress, and prosperity in both business and population were being greatly enhanced thereby, and since also its own actual uses of the waters of said river were being in no wise diminished or impaired. It is true, as averred by the defendants and interveners herein and as found by the trial court, that the city of San Diego on various occasions in its municipal history and through its successive legislative bodies has granted certain rights and privileges to private persons and corporations to develop water by wells and works of various kinds within the limits of the former pueblo lands, and has even contracted to purchase such works when constructed and such water when developed for the use and benefit of the inhabitants of said city; but it is also true as found by the trial court that none of these arrangements was made with any predecessor of the defendants or interveners herein so as to entitle the latter to claim that acts and efforts on the part of the city to have developed its own water supply within its limits and for the use of its inhabitants amounted to such an admission of the validity of the appropriation and uses which the defendants and interveners were undertaking upon the upper reaches of the San Diego river as would operate to constitute an estoppel. The essential elements of an estoppel, even as between private persons, were thus far and up to at least the year 1914 entirely lacking. The defendants and their predecessors, the San Diego Flume Company, in entering upon and prosecuting their plans for the appropriation and diversion of the waters along the upper reaches of the San Diego river and its tributaries, cannot lay claim to having been misled as to their rights as a matter of law to thus appropriate and use the waters of said river, since they must be held to have known as a matter of law of the existence in the city of San Diego of the aforesaid prior and preferential right of the city to such waters and to the assertion thereof whenever the expanding needs of the city or its inhabitants required such assertion. Neither, as we have seen, were the defendants or interveners at any time, at least prior to 1914, in a position to claim that as a matter of fact they or any of them were misled to their injury by any mere acquiescence on the part of the city of San Diego in their acts of diverson and use of the waters of the San Diego river to the extent thereof, since whatever the extent of such diversion and use of such waters these had in no wise interfered with any of the uses which the city of San Diego was thus far making of the waters of the river. There was, in a word, during all of said times ample water for the uses of both the city and these upper appropriators thereof. An instructive case upon this subject is that of Anaheim Water Co. v. Semi-Tropic Water Co., supra, to which reference has been made with relation to rights to be gained by prescription, and wherein also the subject of estoppel is considered; the court proceeding to say: ‘With respect to the estoppel relied on by the plaintiffs it is sufficient to say that, as the findings of the court below show that there was sufficient water flowing in the river in 1857 and for nearly twenty years thereafter to supply the wants and demands of the owners of each of the ranchos bordering on the stream, the owners of the Santiago Rancho were neither called upon to object to the diversion and appropriation by the predecessors of the plaintiffs, nor had they any right to object thereto. No right of theirs was interfered with. Nor does it appear that there was any fraud, misrepresentation, or concealment of any kind practiced upon the predecessors of the plaintiffs by the owners of the Rancho Santiago.’ In certain recent cases, hereinafter to be noted, and also in the case just cited, we have had occasion to quote with approval what was held in the case of Biddle Boggs v. Merced Mining Co., 14 Cal. 368: ‘There must be some degree of turpitude in the conduct of a party before a court of equity will estop him from the assertion of his title— the effect of the estoppel being to forfeit his property and transfer its enjoyment to another.’ It is to be noted in this immediate connection that the claim of estoppel which the upper appropriator of the waters of a stream undertakes to assert against a lower claimant thereto, based upon the latter’s acquiescence, must be founded, not upon the amplitude of the former’s claim as set forth in his recorded appropriation of such waters, nor by the carrying capacity of his ditches or flumes, but upon the actual diversion and use of said waters and only to the extent thereof. Pabst v. Finmand, 190 Cal. 124, 133, 211 P. 11; Haight v. Constanich, 184 Cal. 426, 194 P. 26; Northern Cal. P. Co. v. Flood, 186 Cal. 301, 199 P. 315. We understand the foregoing authorities to state the settled law as declared in this state touching this subject, notwithstanding the array of authorities presented by the appellants and interveners herein from other jurisdictions apparently laying down a different rule.
Even, however, if it were to be conceded that a right based upon estoppel could arise by virtue of mere acquiescence in its assertion as between private persons, we are satisfied that no such claim of right could come into being as against a municipal corporation, founded upon its mere acquiescence or that of its officials in the diversion by any number of upper appropriators or even of upper riparian owners of the waters of a stream to the use of the waters of which such public or municipal corporation was entitled as a portion of its public rights and properties held in perpetual trust for public use. The general rule upon this subject is stated in 10 California Jurisprudence, p. 650, and cases cited, as well as certain limited exceptions to the rule. The defendants and interveners, appellants herein, have referred us to no case wherein the mere passive acquiescence of a public corporation or its officials in the invasion of its rights of property, however long continued, has been held to operate as an estoppel against its assertion of those rights. They have, however, called our attention to certain cases which are claimed to constitute exceptions to the operation of the general rule, and to which we shall presently refer. It is sufficient at this point in the discussion to state that in so far as, prior to the year 1914, the plaintiff herein may have passively acquiesced in the acts of the defendants and interveners in the diversion and use of the upper waters of the San Diego river, no estoppel in pais can be predicated thereon to any extent whatever in favor of the defendants and interveners herein for the several reasons above set forth. The cases above referred to are City of Los Angeles v. Cohn, 101 Cal. 373, 35 P. 1002, wherein the principle of estoppel in pais was given application to an action brought by the city of Los Angeles to recover possession of a small tract of land lying at the intersection of Spring and Main streets in said city, and which was claimed by it to be a part of a public street. That, however, as the court stated in its decision, was an exceptional case from the fact not only that the defendants had been in possession of the property in question adversely and exclusively for almost forty years, during which time they had erected substantial buildings thereon, but that the city, through its officers, had affirmatively and at the time of the erection of such buildings misled the defendants into the belief that the city laid no claim to the premises in question, and that, acting upon such belief and assurance, the defendants had erected their structures upon the property and occupied the same undisturbed for many years. This case bears no similitude to the case at bar. Counsel also direct our attention to the case of Ames v. City of San Diego, 101 Cal. 390, 35 P. 1005; but a reading of that case discloses that a clear distinction was drawn therein between the two classes of pueblo lands which the city of San Diego holds in succession from the former pueblo, namely, those held in trust for a specific public use, such as a park, which cannot be alienated and the title to which cannot be lost by adverse possession; and those lands, such as house lots, which the city, as successor to the pueblo, held and which might be alienated by it, and which it was held for that reason might be lost by adverse possession. There is no comfort for the defendants herein in the decision of this court in that case. Counsel for the defendants and interveners further insist that under the Spanish and Mexican laws pueblo lands might be lost by prescription. It is needless to follow this argument or the authorities cited therein further than to state that the United States in taking over the territory known as Alta California under the treaty of Guadalupe-Hidalgo, agreeing therein to recognize the existence and protect the ownership of certain land titles within said territory, did not also take over and agree to adopt the statutes of limitation of either Spain or Mexico as applicable to lands or waters devoted to a public use.
With respect to the events transpiring between the years 1914 and the date of the institution of the present action, inclusive, in so far as these affected the relations and respective rights and claims of the original parties to this action in and to the use of the waters of San Diego river, the record herein discloses that in the early part of the year 1914 the city attorney of the city of San Diego, acting in obedience to a resolution theretofore adopted by the common council thereof requesting him to make an investigation of the rights of the city in and to the waters of the San Diego river and submit an opinion thereon, presented to that body a formal report upon that subject, going with much of detail into the history of the pueblo foundation, and citing and quoting at length from the decisions of the state and federal courts touching the nature and extent of the water rights of pueblos in and to the waters of streams passing through them, and making particular application of these decisions to the nature and extent of the water rights of the pueblo and city of San Diego in and to the waters of the San Diego river. This opinion was published in pamphlet form at or shortly after the date of its presentation, and was admittedly brought to the attention of both the defendants and interveners herein about that time. It would seem to follow of necessity that if the asserted rights of the defendants and interveners to whatever extent, if any, we may find them to have been assertable, had not up to that time ripened into rights resting in the doctrine of estoppel, no later assertion of these rights and no later acts in the way of a further appropriation or diversion of said waters could be made the basis for a claim of right which did not then exist, unless they could be held to find their support in some very definite withdrawal of the claim of the city to that prior and preferential right to the use of such waters which was thus definitely set forth by the foregoing report the city attorney made in the month of January, 1914, and then or shortly thereafter brought to the notice and knowledge of the defendants and interveners herein. In the year 1917, however, the city of San Diego took a very definite step in the direction of making available to itself certain of the waters of the San Diego river not as yet conserved or appropriated to any beneficial use. In that year a bill was introduced in the United States Congress at the instance of the city of San Diego purporting by its title ‘to grant rights of way over government lands for reservoir purposes for the conservation and storage of water to be used by the City of San Diego, California, and adjacent communities.’ The text of the measure thus presented in Congress had reference to a proposed reservoir to be constructed along the upper reaches of the San Diego river and upon lands which formed a portion of an Indian reservation, the title to which was in the United States. While this measure was pending before certain committees of Congress during that and the following year, the passage thereof was strenuously opposed by certain representatives of the defendants and interveners herein; their contention being that the grant of such reservoir rights, with the resultant construction of the proposed reservoir, would constitute a serious interference with the already vested rights of the defendants and interveners to the beneficial use of the waters of the San Diego river. In furtherance of the urge of these opponents and in an effort to so far limit the scope and purpose of said grant and the exercise of whatever reservoir rights and uses were to be asserted thereunder, it was sought to have the city of San Diego, through its officials then in charge of its municipal affairs, adopt certain resolutions disclaiming any intent on the part of said city to interfere with the uses then being made of the waters of the San Diego river by the defendants and interveners herein, and in pursuance thereof certain resolutions were adopted by the then governing body of said city touching this subject. A considerable portion of the record consists of details of this proceeding in Congress and there is considerable discussion in the brief of counsel with respect to the attitude thus taken by the city of San Diego with relation thereto. It would seem, however, that the trial court adequately and correctly considered and epitomized this entire episode in its findings of fact herein, and that with particular reference to the resolutions adopted by the governing body of the city of San Diego having reference to the aforesaid controversy correctly stated therein that: ‘It is not true that by said resolutions, or by any resolution, or act of said common council the plaintiff herein, acting by or through its legislative body, has expressly or impliedly admitted the ownership by the defendants, or any of them, of the right to use and develop the waters or any of the waters of the San Diego river prior, superior or paramount to the rights of the plaintiff.’ With respect to the action of the Congress of the United States as to the form and scope of said proposed legislation, in view of the developed opposition of the defendants and interveners herein to the passage thereof, the trial court found that: ‘It is not true that the Public Lands Committee of Congress or any other Congressional body, or any member of Congress, upon receiving or noting the protest of defendants, or any of them, or of any city or communities served by Cuyamaca Water Company, or for any other reason, refused to adopt said proposed bill or house resolution unless or excepting this plaintiff admitted either expressly or impliedly an ownership and estate of these defendants, or any of them, in or to the waters or the use of the waters of the San Diego river. On the contrary, it is true that the Congress of the United States and the Public Lands Committee of the Senate, and the House of Representatives, and each of them, and the members thereof, explicitly and unequivocally set forth in said bill, and insisted in setting forth in said bill a provision declaring that nothing therein contained should be construed as affecting or intending to affect or in any way to interfere with the laws of the State of California relating to the control, appropriation, use or distribution of water used in irrigation or for municipal or other uses or any vested rights acquired therein, and that the Secretary of the Interior and The City of San Diego in carrying out the provisions of said Act should proceed in conformity with the laws of said State of California.’ The foregoing findings of the trial court, based as they are on much probative evidence which fully supports them, would seem to set at rest the question as to whether the plaintiff had lost, by its affirmative action or by way of estoppel, whatever rights we have found it to be possessed of prior to the year 1914, to the assertion of its paramount use whenever required of the waters of the San Diego river. There is, however, a further finding of the trial court which would seem to be conclusive as to the existence of any right whatever resting in estoppel on the part of the defendants and interveners herein to a superior right to that of the plaintiff in the use of the waters of the San Diego river. Such finding, which in our opinion the evidence fully supports, reads as follows: ‘It is not true that the plaintiff has been guilty of any carelessness or any culpable negligence resulting in the defendants, or any of them, being misled as to the state of the plaintiff’s title as set forth in its amended complaint. Neither is it true that the defendants were at all times ignorant, or were at any time ignorant of the claim of the plaintiff to the prior and paramount right to the use of the water of the San Diego river. Neither is it true that the defendant had no convenient or ready means of acquiring knowledge respecting the prior and paramount right of the plaintiff in and to the waters of the San Diego river, but, on the contrary, it is true that the defendants and their predecessors in interest at all times had convenient and ready means of acquiring knowledge respecting such right, and at all times knew of plaintiff’s claim to such right. It is not true that such acts, omissions and declarations of the plaintiff as are herein found to have been performed were said or done through fraud, and it is not true that any act or omission or declaration of the plaintiff constituted a fraud upon the defendants, or any of them, and it is not true that any act or omission or declaration herein found to have been done or declared by the plaintiff has injured the defendants, or any of them, or justified the defendants, or any of them, in believing that the plaintiff did not own or claim to own an estate in the waters of the San Diego river as alleged in said amended complaint; neither is it true that the defendants nor any of them relying or acting upon any belief fraudulently induced by the plaintiff have expended any money in the development of the waters of the San Diego river. Neither is it true that the defendants nor any of them, or their predecessors in interest, relying or acting upon the belief that the City of San Diego did not own the prior and paramount right to the use of the waters of the San Diego river, expended large or any sums of money in developing said waters and acquiring an estate therein.’
When we come to consider the essential and elementary basis of the doctrine and plea of estoppel in the light of the foregoing findings of the trial court, the conclusion would seem to be inevitable that the elements of estoppel are entirely lacking in this case. These elements of estoppel are all embraced in the definition thereof found in subdivision 3 of section 1962 of the Code of Civil Procedure, which reads as follows: ‘Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it.’ This court has frequently been called upon to interpret and apply the foregoing provision of the Code. It is necessary to cite but two of the most recent cases in which it has done so. One of these is Mercantile Trust Co. v. Sunset, etc., Co., 176 Cal. 461, 472, 168 P. 1037, 1041, wherein this court said: ‘It is of the essence of an estoppel in pais that the party asserting such estoppel should not only have been ignorant of the true state of facts, but that he should have relied upon the representation or admission of the adverse party.’ The other case is that of Staniford v. Trombly, 181 Cal. 372, 378, 186 P. 599, 601, wherein it was said with reference to the facts of that case: ‘There was an absence of the essential elements of estoppel, namely, false statements or concealments, or conduct amounting to false statements or concealments, with reference to the boundary made by one having knowledge, actual or virtual, of the facts, to one ignorant of the truth with the intention, resulting in consummation, that he should act upon such false statements or concealments or equivalent conduct.’
In the presence of the foregoing findings of fact as made by the trial court, and in the light of the indispensable elements as thus stated by this court essential to be proven in order to the formation of a basis for the defense of estoppel, it is as difficult to understand as it is impossible to uphold the further findings and conclusions of the trial court to the effect that the defendants and interveners are entitled to the benefit of their plea of estoppel to the extent of their diversion and use of the waters of the San Diego river in the amount of twenty-seven cubic feet per second, or in any amount, and that as against such right resting solely in such use the city of San Diego is estopped to assert its prior and paramount right to the use of the waters of the San Diego river. That this conclusion may be fraught with certain disturbing and even disastrous consequences, affecting chiefly the interveners, herein, and which have been insistently and even passionately urged by their counsel in the presentation of this prolonged controversy, can be held to furnish no reason for a deprival of the plaintiff herein of its ancient, prior, and paramount right to the use of the waters of the San Diego river as defined by this court upon the former appeal. If it be true, as the trial court expressly found it to be, that the San Diego Flume Company and its successor, the Cuyamaca Water Company, entered upon and prosecuted their plan for the diversion of the waters of the San Diego river with full knowledge as a matter of law, and with full means of knowledge as a matter of fact, as to the existence of the prior and paramount right of the plaintiff as the successor of the pueblo to the use of the waters of the San Diego river as such right is set forth and defined in our former opinion, and if it be further true, as it must be conceded to be, that the interveners are entitled to assert and insist upon no further rights or equities in respect to the use of said waters than those which were possessed by their predecessor in interest, the Cuyamaca Water Company, we are unable to perceive upon what principle of equitable application the public trust in which the city of San Diego holds its prior and paramount right to the use of the waters of said river to the full extent which the needs of the expanding city from time to time require is to be subverted for the simple and only reason that other persons or other communities along the upper reaches of the river, with full knowledge of the aforesaid prior and paramount rights of the plaintiff, may have undertaken, at a considerable expenditure of money, to make a beneficial and profitable use of such waters.
The only remaining question for our determination upon these appeals relates to that portion of the judgment of the trial court wherein it purported to enjoin the defendants and interveners from the doing of certain constructive work in connection with their conservation and diversion of the waters of the San Diego river except in subordination to the prior and paramount rights of the plaintiff therein, and also purporting to restrain the defendants and interveners from the assertion of any claims of right or title in or to the waters of the San Diego river except in subordination to the paramount rights of the plaintiff therein, and save and except in the amounts and to the extent in said judgment specified. In respect to the aforesaid portions of the judgment it is clear that the trial court has gone beyond the scope and issues of the instant action. This, as we have seen and as this court has already decided upon the former appeal, is an action purely declaratory in character and is one wherein the plaintiff has neither pleaded nor attempted to prove any facts which would entitle it to any other or affirmative relief beyond that of having its prior and paramount right to the use of the waters of the San Diego river established. This being so, the trial court was in error in attempting to give to its determination of this matter any other or further effect than that of a declaratory judgment.
It follows from the foregoing conclusions that the judgment herein must be and is hereby affirmed in so far as it purports to establish the prior and paramount right of the plaintiff to the use of the waters of the San Diego river as the same was defined in our former opinion herein; that the judgment herein is reversed in so far as it purports to determine that the defendants and interveners have become possessed either by prescription or by estoppel of any rights in and to the waters of said river, or any portion thereof, in diminution to any extent whatever of the prior and paramount rights of the plaintiff therein; that said judgment is reversed as to that portion thereof wherein it purports to decree that the plaintiff is entitled to any other or further relief herein other than that afforded by the remedy of a declaratory judgment; each of the parties hereto to pay its own costs upon these appeals.
We concur: WASTE, C. J.; SEAWELL, J.; SHENK, J.; CURTIS, J.; PRESTON, J.; LANGDON, J.