Opinion
Rehearing Denied Nov. 27, 1943.
Hearing Granted Dec. 20, 1943.
Appeal from Superior Court, Lake County; Hilliard Comstock, Judge.
Action by Robert Lilburn Prather and others, executors of the will of W. R. Prather, deceased, against Max Hoberg to apportion the waters of a creek, spring and underground stream, enjoin defendant from interfering with plaintiffs’ portion of water, and recover damages for unlawful diversion of the flow of the stream by defendant, who filed a cross–complaint to quiet title to all waters secured by means of a tunnel constructed by him. Judgment for plaintiffs and defendant appeals.
Reversed. COUNSEL
Breed, Burpee & Robinson, of Oakland, and Derby, Sharp, Quinby & Tweedt, Associate Counsel, of San Francisco, for appellant.
Huston, Huston & Huston, of Woodland, and H. G. Crawford and Burt W. Busch, both of Lakeport, for respondents.
OPINION
THOMPSON, Justice.
The defendant has appealed from a judgment which was rendered against him in a suit to apportion the water of Big Canyon Creek in Lake County between adjacent riparian tracts of land belonging to the respective parties, each of whom maintains a popular summer resort. The court also awarded damages against the defendant for wrongfully diverting from an underground stream, which is the source of said creek, an excessive amount of water by means of a tunnel, depriving plaintiffs of their reasonable share thereof. Injunctive relief was also granted.
We have inserted a map taken from defendant’s brief to show the relation of the respective properties to the underground stream, spring and creek which are involved in this litigation. Plaintiffs own the two northerly contiguous tracts of land enclosed in heavy lines, across both of which Big Canyon Creek flows. The first is designated "Plaintiffs’ Tract 1, Price Ranch." The other is marked "Plaintiffs’ Tract 2" upon which Adams Springs Resort is located. Both tracts of land border on both sides of the creek. Prather Spring, which supplies the water for said creek, and for Adams Springs Resort, is situated 100 feet northerly from the extreme southerly boundary line of plaintiffs’ so-called Price Ranch.
Defendant owns three adjoining tracts of land, which are marked on the map "Defendant’s Parcel 1", "2" and "3", respectively. Defendant’s first parcel contains 17 acres of land and adjoins plaintiffs’ Price Ranch on the south. The defendant’s summer resort, called Hoberg’s Resort, is located on the southeast corner of his 17 acre parcel. On this same tract, near the northern border, opposite Prather Spring, a couple of hundred feet distant, the defendant constructed a tunnel extending southerly into the hillside a hundred feet or more where he tapped the underground stream which furnishes the supply of water for Prather Spring and the creek.
The locations of Hoberg Tunnel, Prather Spring, both summer resorts, and the course of Big Canyon Creek are appropriately marked on the map.
After the commencement of this suit in 1931, the original plaintiff, W. R. Prather, died and the present plaintiffs, as his heirs and representatives, were substituted as proper parties. For more than two decades the plaintiffs and their predecessors in title have owned a tract of land east of Kelseyville in Lake County, consisting of more than 200 acres of land, upon which they have continuously maintained and operated a popular health and pleasure resort called Adams Springs. More than twenty years ago they purchased the Price Ranch, consisting of 160 acres of land, adjoining their original tract on the west. From time immemorial a small stream called Big Canyon Creek, supplied with water from a perennial spring called Prather Spring, which is located on the extreme southerly portion of plaintiffs’ Price Ranch, about 100 feet north of defendant’s 17 acre parcel 1, flowed down a well defined channel through a swale or gulch over a portion of the Price Ranch, and thence northeasterly over plaintiffs’ tract 2, to an angle from which it flows southeasterly across that tract of land. Adams Springs is located on plaintiffs’ property, on the south side of the stream near the angle, over a mile from the spring. Adams Springs has been continuously patronized annually by several hundred guests. Plaintiffs’ land has not been used for agricultural purpose, with the exception of fifteen acres of the Price Ranch, which was annually cultivated until that farming enterprise was necessarily abandoned for lack of water after 1924, when the defendant diverted the water from the spring and creek by means of a tunnel which he constructed on his 17 acre parcel at a point 200 feet south of the spring. Since that time the plaintiffs’ land has been used almost exclusively for the maintenance of their summer resort at Adams Springs. That resort is absolutely dependent for maintenance on the water from the spring and Big Canyon Creek. For many years the water which is used in and about the Adams Springs resort has been piped by the plaintiffs from the spring. The flow from this spring naturally varies during the summer and winter months and in unusually wet and dry seasons. Both of plaintiffs’ adjoining tracts of land are riparian to Big Canyon Creek.
For more than a decade the defendant has owned three contiguous parcels of land in Lake County, situated southerly and westerly from plaintiffs’ previously mentioned property. Defendant’s lands are respectively designated as parcels 1, 2 and 3. Parcel 3 adjoins plaintiffs’ Price Ranch on the west and contains more than two hundred acres. It is not contended that parcel is riparian to the stream. It has not been used for agricultural purpose and was not considered in apportioning the water of Big Canyon Creek. Parcel 1 adjoins plaintiffs’ Price Ranch on the south, and contains 17 acres of land. On the southeast corner of this parcel the defendant maintains his Hoberg Resort. Near the northerly boundary of this parcel, without the knowledge or consent of plaintiffs, the defendant, in 1924, constructed a tunnel south of Prather Spring, at a distance of about 200 feet therefrom, extending southerly some distance into Boggs Mountain, where it tapped the water supply in the underground stream, which is the chief subject of controversy in this suit. It is not contended the defendant used any of his land for agricultural purpose. The water which he obtained from the underground stream by means of the tunnel and a pumping system was used exclusively to supply the needs of his summer resort. The court determined that until this water was diverted in 1924, Hoberg Resort did not have a patronage of guests approximating the number which annually visted Adams Springs. After the diversion of water from the underground stream the supply in Prather Spring was increasingly diminished from year to year, so that the plaintiffs were finally obliged to abandon the cultivation of 15 acres of land on their Price Ranch and to discontinue the maintenance of a small dairy and garden at Adams Springs, and they had an insufficient supply of water for the use of their resort.
When the plaintiffs learned of defendant’s diversion of the water from the underground stream, by means of his tunnel and pumping system, they brought this suit to apportion the water of Big Canyon Creek, Prather Spring and the underground stream, to enjoin defendant from interfering with their portion of the water, and for damages as a result of the alleged unlawful diversion of the flow of the stream. The defendant answered the complaint, denying the material allegations thereof, and also filed a cross complaint asking for a decree quieting title to all of the water secured by means of the tunnel and pumping system on the theory that it was percolating water in the soil of his own land to which he is entitled, and that the alleged underground stream beneath defendant’s parcel 1 does not exist.
The trial of the case was not finally completed for several years. At least three separate hearings occurred. The trial judge viewed the premises. The court adopted findings favorable to the plaintiffs determining that: "There is an underground stream of water flowing beneath the property of said plaintiff" and defendant’s 17 acre parcel 1, to which underground stream plaintiffs’ land is riparian; "that Hoberg Tunnel and the Prather Spring derive their water supply from the same source, to-wit: said underground stream, * * * and that said tunnel and said spring are directly connected with said water supply; that said stream of water does now and at all times referred to in the complaint has come to the surface of the ground upon plaintiff’s property * * * forming what is known as Prather Spring; that the waters of said Prather Spring overflow, form and supply what is known as Big Canyon Creek; that said water flows from the said Prather Spring down said Big Canyon Creek and through the property of said plaintiff described in said complaint; that the lands of the plaintiff described herein and the said lot One (1) are riparian to said underground stream; that there has been and is a flow of water underlying the lands of the plaintiff and said lot One (1) of the lands owned by the defendant; " that for more than forty years the plaintiffs and their predecessors in interest have necessarily used the water from said spring and Big Canyon Creek to irrigate fifteen acres of their Price Ranch for agricultural purpose and to supply their Adams Springs Resort; that without the knowledge or consent of plaintiffs, the defendant in 1924, completed a tunnel on parcel 1 of his land, at a point about one hundred feet south of the boundary line between plaintiffs’ and defendant’s property, by means of which, with the use of pumps, the "defendant diverted an unreasonably large portion of the flow of said underground stream," a part of which he used on lands in the Kelsey Creek watershed not riparian to the Big Canyon Creek or the underground portion thereof, thus depriving plaintiffs of their reasonable share of said water; that the quantity of water unlawfully diverted by the defendant by means of the tunnel and pumping system has gradually increased since 1929, and the quantity ascessible to the plaintiffs has greatly decreased until they have been forced for lack of water to abandon a valuable garden and dairy previously maintained by them, and they are unable to secure "sufficient water to supply the reasonable demands and necessities of said Adams Springs; " that the amount of water reasonably required by plaintiffs for the maintenance of Adams Springs is 258 gallons per minute, in addition to 2 acre feet of water per annum to irrigate fifteen acres of their Price Ranch for agricultural purpose; that continuously since 1880 the plaintiffs have conveyed the water necessary for use at Adams Springs from the Prather Spring by means of pipes and ditches.
The court further found that the quantity of water reasonably and beneficially necessary for defendant’s use on his 17 acre tract of land to supply the needs of Hoberg Resort, situated thereon, is "one-fifth (1/5) of the dependable supply at Hoberg tunnel, * * * which, until further order of the Court is fixed at six thousand (6,000) gallons per day pumped by the said defendant at the rate of sixteen (16) gallons per minute." The court did find that the defendant diverted water by means of the tunnel amounting "in some instances to approximately Fifty Thousand (50,000) gallons of water per day."
The court specifically refrains from determining whether defendants’ southerly parcel 2, consisting of 160 acres of land, is riparian to either the underground stream or Big Canyon Creek, and therefore does not consider that tract of land in apportioning the water. That problem is specifically reserved for future determination.
Finally, in finding number 27, the court determines that the plaintiffs are "entitled to the use of all of the water flowing into said Prather Spring and said Big Canyon Creek, except the quantity of water herein apportioned to the said defendant Hoberg, * * *; that the quantity of water herein found that said defendant, Max Hoberg, is entitled to is equal to one-fifth (1/5) of the dependable daily supply at the said Hoberg tunnel, pumped at the time and manner hereinbefore fixed."
The findings do not determine the quantity of water which Prather Spring is capable of producing, except that the 9th finding does determine that plaintiffs require 258 gallons per minute for necessary use at Adams Springs, together with 2 acre feet to irrigate the 15 acre tract of land. The 11th finding also determines that since 1880 the plaintiffs have conveyed the water from Prather Spring to Adams Springs by means of "pipes and ditches."
Based on said findings a decree was rendered awarding to plaintiffs, as riparian owners of land adjacent to Big Canyon Creek, Prather Springs and the underground stream, previously mentioned, "the full flow of said stream without diminution or interference by the defendant, except to the extent fixed in the findings," which is one-fifth of the supply procured from the Hoberg Tunnel. The defendant is perpetually enjoined from interfering with plaintiffs’ apportioned share of the water. Judgment for damages in the sum of $2,500 is awarded to plaintiffs on account of the defendant’s diversion of water from the underground stream by means of the tunnel. Jurisdiction is specifically reserved in the trial court to determine in the future the defendant’s riparian rights, if any exist, to a portion of the water of Big Canyon Creek, Prather Spring or the underground stream, for use on his southerly 160 acre parcel of land. From that judgment this appeal was perfected.
The appellant seeks a reversal of the judgment on the grounds that: (1) The findings and decree to the effect that an underground stream exists beneath the surface of defendant’s 17 acre parcel 1, which stream flows into and is a part of Prather Spring and Big Canyon Creek, are not supported by the evidence; (2) the water secured by means of the Hoberg Tunnel is merely percolating water to the whole of which he is entitled by priority for the necessary benefit of his summer resort as a domestic purpose; (3) the court erred in failing to determine that defendant’s 160 acre parcel 2 is also entitled to participate in the apportionment of the water derived from the Hoberg Tunnel; (4) the apportionment of water between plaintiffs and the defendant as owners of riparian lands is unreasonable and unsupported by the evidence; (5) the court erred in failing to apportion to the defendant a specific quantity of water, rather than a mere percentage of the flow of the underground stream; (6) the findings and judgment are irreconcilably conflicting in determining that the defendant is entitled to one-fifth of the water secured by means of the Hoberg Tunnel, without regard to the quantity of water obtained by the plaintiffs in the remainder of Big Canyon Creek, while on the contrary the court fixed the quantity of water to which the defendant is entitled at a maximum of six thousand gallons per day, and finally, (7) the court erred in refusing to reopen the case, after it had been submitted, to permit the introduction of evidence of experiments and of the effect upon the water supply in Hoberg Tunnel and Prather Spring, as the result of an unusually heavy rainy season, in comparison with other springs and reservoirs in that vicinity, ascertained by the sinking of several wells.
The record contains substantial evidence supporting the findings and judgment determining that an underground stream flows northerly beneath the surface of defendant’s 17 acre parcel 1 into, and becomes a part of, Prather Spring and Big Canyon Creek, to which certain specified lands of both parties to this action are riparian.
When the presence of an underground stream is satisfactorily established showing its direct connection with a perennial spring and a surface creek flowing in a well defined channel through and beyond the lands of riparian owners, the underground stream, the spring and the open creek are deemed to be parts of the same water course, to the natural flow of which the owners of land riparian to any portion thereof have the usufructuary and correlative rights of proportionate necessary and beneficial use, dependent upon their respective needs under the circumstances of a particular case. City of Los Angeles v. Pomeroy, 124 Cal. 597, 57 P. 585; Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 81 P.2d 533; Verdugo Cañon Water Co. v. Verdugo, 152 Cal. 655, 93 P. 1021; 25 Cal.Jur. 1102, § 110; 67 C.J. 834, § 249; 2 Wiel on Water Rights, 3d Ed., 1011, § 1077. It is true that in the absence of proof, an underground supply is presumed to consist of percolating water, and that the burden is on one who asserts the existence of an underground stream, to prove that fact. The authorities recognize the fact that the presence of a flowing underground stream within fixed boundaries may be satisfactorily established from the nature of the topography of the land, from shrubs and trees along its course on the surface of the land, from the tapping of the stream by means of wells or tunnels, from the effect of a diminution of its supply upon springs or surface rivers or creeks, and in various other methods. In 67 C. J., supra, at page 834, it is, however, said in that regard: "Once a subterranean stream is known to exist, the presumption is that it has a fixed and definite course and channel through which it flows and which varies only with the erosion which the water produces."
In the present case, as we have previously said, there is sufficient evidence to support the conclusions of the court, after viewing the premises, that an underground stream exists beneath defendant’s parcel 1, which flows in a definite channel into Prather Spring and thence into Big Canyon Creek, to which certain designated properties of both parties are riparian. It would unduly extend the length of this opinion to attempt to recite the evidence which we think justified the court in determining the existence of that underground stream and of the fact that it flows directly into and becomes a part of Prather Spring and thence into Big Canyon Creek. Both the defendant and his son, George Hoberg, testified that they struck a stream with a continuous steady flow of water when they dug their tunnel. The defendant said: "I think it was in 1924, spring and fall of 1924, we went in there and excavated it to its present size, and we found a big stream of water there, probably 45 or 50 gallons a minute, in one solid stream."
George Hoberg testified that they pumped from that tunnel approximately 50 gallons of water per minute. He said, "That supply runs in. That supply acts very much like a running stream." The evidence shows that defendant’s use of water from the tunnel had a direct effect upon Prather Spring by greatly reducing the quantity of water therein. For the purpose of experimenting to ascertain whether there was a direct connection between Hoberg Tunnel and Prather Spring, the plaintiffs installed a pump in that spring and reduced the water in the spring to a low level, which promptly resulted in practically exhausting the water in Hoberg Tunnel. When the pumping ceased the flow of water was restored to the tunnel. After those experiments were performed, the defendant, in April, 1934, sought to enjoin plaintiffs from continuing to pump water from Prather Spring, pending the trial of this suit. Upon that motion the affidavit of Max Hoberg was read in evidence, in which he averred that he relied upon that supply of water for the maintenance of his summer resort, and that the pumping of water from Prather Spring by plaintiffs greatly reduced the supply of water in Hoberg Tunnel. We are satisfied the evidence sufficiently shows a direct connection of a constantly flowing stream of water between the source which was tapped by the Hoberg Tunnel and Prather Spring, which is the undisputed source of Big Canyon Creek.
Clearly the water from Prather Spring, which for generations has flowed directly into Big Canyon Creek and became an inseparable part of that stream, is subject to apportionment between owners of land riparian to the creek. Irrespective of the source of supply, the water from a spring which flows into a creek with a well defined channel is deemed to be a part of that stream, and the use of its water is governed by the doctrine of riparian rights. Gutierrez v. Wege, 145 Cal. 730, 79 P. 449; Hanson v. McCue, 42 Cal. 303; San Francisco Bank v. Langer, 43 Cal.App.2d 263, 110 P.2d 687; 25 Cal.Jur. 1106, § 113; 1 Wiel on Water Rights, 3d Ed., 357, § 336.
In apportioning the quantity of water to which the plaintiffs are entitled, the court properly included 15 acres of the Price Ranch which had previously been cultivated in spite of the fact that it was acquired by them subsequently to their purchase of the other tract upon which Adams Springs is situated. The Price Ranch is riparian to Big Canyon Creek and Prather Spring independently of the location of the previously acquired tract. It is entitled to riparian benefits to the extent of the water necessarily and beneficially used on that ranch for agricultural purpose, regardless of the demands of the other tract for a reasonable quantity of water for the maintenance of the summer resort. The court recognized that fact and made a separate allowance for the Price Ranch. Both tracts are riparian to the creek on both sides of the stream. Riparian rights attach to land by virtue of its location adjacent to either bank of a stream. It is true that the area of riparian land may not be enlarged by the addition of a subsequently purchased adjoining tract which does not border on the stream. Miller & Lux v. James, 180 Cal. 38, 179 P. 174; 67 C.J. 685, § 11. In this case no previously purchased land intervenes between the Price Ranch and the creek. It is therefore entitled to riparian benefits in its own right.
The appellant contends that since the water which he secured by means of the Hoberg Tunnel was percolating water taken from the soil of his overlying land in parcel 1, and not from an underground stream, he acquired prior rights to the entire supply. We are of the opinion that claim is not necessarily true. The English common law doctrine of absolute right to the use of percolating water by the owner of overlying land is not the present accepted rule in California. In this and in most jurisdictions of America the English rule in that respect has been rejected. The same correlative rights which apply to the owners of riparian land prevail in California with respect to adjacent owners of land overlying a common supply of percolating water. Neither is entitled to appropriate the entire supply for the benefit of his own land, to the detriment of the needs of his neighbor’s land. If the quantity of percolating water is insufficient for both owners, each is entitled to a reasonable proportion according to the necessary beneficial use to which it may be adapted on the overlying land. It may not, however, under such circumstances, be transported for use on other remote land which has no relation to the supply from which the percolating water is taken. Burr v. Maclay Rancho Water Co., 154 Cal. 428, 98 P. 260; 67 Corpus Juris 838, § 255; 29 Cal. Law Rev. 7. Many cases in support of that doctrine are cited at page 8 of the last mentioned Review.
The syllabus in the Burr case, supra, correctly states the rule as follows: "Different owners of separate tracts of land, situated over common strata of percolating water, may, each upon his own lands, take by means of wells and pumps from the common strata, such quantity of water as may be reasonably necessary for beneficial use upon his land, or his reasonable proportion of such water, if there is not enough for all; but one cannot, to the injury of the other, take such waters from the strata and conduct it to distant lands not situated over the same water-bearing strata."
The Price Ranch extended over the source of water from which the defendant obtained his supply by means of the tunnel, for the evidence clearly shows that Prather Spring was immediately affected by the absence or flow of water in the tunnel. Under that rule, regardless of whether the tunnel tapped an underground stream or not, the plaintiffs would be entitled to their correlative share of the percolating water for necessary use on the Price Ranch.
However, the court has found that the defendant took the water from an underground stream by means of the tunnel, and we have previously held that finding is sufficiently supported by the evidence.
The appellant also contends that he acquired title to that water by adverse possession. The court determined that he failed to establish the necessary elements constituting adverse possession. The evidence supports that finding.
The appellant contends that the court erred in failing to determine whether his 160 acre parcel 2, which adjoins parcel 1 on the south, upon which last mentioned parcel the bulk of improvements constituting Hoberg’s Resort are situated, is riparian to the underground stream, which is the only source from which he derives his supply of water. In finding 32 the court specifically reserves jurisdiction to subsequently determine whether defendant’s parcel 2 is riparian to the underground stream. The appellant challenges that finding in the following language: "Unless and until the court determines the amount of defendant’s land which was riparian to the water supply, it had not laid the necessary basis for determining (a) the prorata of water to which the defendant was entitled; (b) the land upon which the water could be used; and (c) the amount of damages to be awarded against defendant."
There appears to be merit in the foregoing statement of the appellant. The evidence is undisputed that at least some of the buildings comprising the Hoberg Resort are situated on defendant’s parcel 2. His chief demand for water from the Hoberg Tunnel was for use in supplying his resort. After determining that the present patronage of the two resorts is approximately the same, from which it would necessarily be inferred their demands for water for that purpose would be about the same, the court awards the defendant only one-fifth of the water from the underground stream, and enjoins him perpetually from interfering with plaintiff’s right to the remaining four-fifths thereof. If the underground stream actually does extend southerly beneath the surface of defendant’s parcel 2, he is thereby deprived of his just proportion of that water as riparian owner of that parcel of land for supplying the needs of that portion of his resort which is situated on parcel 2. The court further found that the defendant wrongfully diverted a portion of the water from Hoberg Tunnel for use on parcel 2, and assessed damages against him in the sum of $2,500 for that diversion. Assuming that a portion of the water from Hoberg Tunnel came from the underground stream to which parcel 2 is riparian, it would follow that the judgment is erroneous to that extent. We conclude that, to make a just apportionment of the water between the parties to this action for necessary use in the respective resorts, it is essential to determine whether defendant’s parcel 2 is riparian to the underground stream and that the court erred in failing to so determine.
For the reason stated in the last paragraph, the damages which were awarded against the defendant for wrongfully diverting the water from Hoberg Tunnel for use on his parcel 2 is uncertain and unwarranted for the reason that an undetermined portion thereof may have been for the use of water on parcel 2, to which the defendant is entitled if that parcel is riparian to the underground stream.
Moreover, the court awarded to the plaintiff four-fifths of the water from the Hoberg Tunnel which it estimates to be 258 gallons per minute for use in and about his Adams Springs Resort, in addition to two acre feet for agricultural purposes on 15 acres of tract 1. It appears that said last mentioned 15 acres of land had not been cultivated by the plaintiff for several years, during which period of time he conveyed by means of pipes and ditches all of the water, including the portion allotted to said 15 acres, used by him on his tract 2, upon which his resort is situated. It is the present correlative needs of the separate riparian tracts of land which should be considered in apportioning the water from said stream. In other words, it appears that the plaintiff has for several years diverted and used for resort purpose on his separate tract 2, to the detriment of the defendant, all of the water which was allotted to his tract 1. This diversion of water to the detriment of an upper riparian owner of land, from one separate tract of land to another, is contrary to the established rule of apportionment.
In 25 California Jurisprudence 1124, § 134, it is said in that regard: "One who owns two or more tracts riparian to the same stream may not take water to which he is entitled by virtue of the ownership of one and use it on the other. * * If both tracts adjoin, he is entitled to divert water from the upper for the lower to the extent that his lower holding entitles him to water; but he may not in addition take, for use there, the water which he is entitled to use as upper owner." (Italics added)
To the same effect it is said in Parker v. Swett, 188 Cal. 474, at page 485, 205 P. 1065, at page 1069: "The rights of riparian proprietors on the same stream, with respect to each other, are mutual and reciprocal. Neither has a right to the whole stream as against the rights of the others. Each is entitled only to his reasonable share thereof, considering the rights and needs of the others, and such rights must be exercised and the use must be made only on the parcel to which the rights attach. Swett could not use her riparian rights on tract 3 to feed or increase her right on tract 1, or to collect it on tract 3 for the purpose of using it all on tract 1, without allowing to the plaintiff, for use on his land, his rightful share of the water so collected." (Italics added.)
Applying the language of the preceding authorities to the present case, the plaintiff is not entitled to divert from the creek the water allowed to cultivate 15 acres of tract 1, to the detriment of defendant’s fair share thereof, so as to increase the quantity apportioned to plaintiff for use only on his tract 2. That would result in plaintiff’s augmenting the quantity of water apportioned to him for use in and about his resort on tract 2, by the quantity of water which was specifically allowed for necessary use on tract 1 only.
The defendant contends that the findings are conflicting and unsupported by the evidence in awarding to him one-fifth of the supply from the underground stream, and in then fixing that one-fifth proportion at a maximum quantity of 6,000 gallons per day, which is only 4 1/6th gallons per minute, as compared with 258 gallons per minute which were allowed plaintiffs for a similar use at Adams Springs.
There appears to be merit in that contention. The court separately apportioned for plaintiffs’ use for cultivating 15 acres of land on their Price Ranch the additional quantity of 2 acre feet per annum, which does not appear to be unreasonable or disproportionate for that purpose. But it does appear that the remaining uses to which the respective parties apply the water of the combined supply from the underground stream, Prather Spring and Big Canyon Creek is almost exclusively for the maintenance of their summer resorts. These enterprises are quite similar in character and in their magnitude. It is true that in addition to the necessary and beneficial use of water for Adams Springs the plaintiffs did maintain a vegetable garden and a small dairy consisting of a few milk cows. It is also true that, until defendant diverted the water from the underground stream by means of Hoberg Tunnel, the plaintiffs enjoyed a much larger patronage of guests at Adams Springs than did the defendants at Hoberg’s Resort. It also appears to be true that as a result of the diversion of water the patronage at Adams Springs decreased, and the patronage at Hoberg’s Resort increased until, as the court finds, at the time of trial, the patronage of defendant’s resort "approximated" that of the plaintiffs’ resort. We may assume that the court properly took into account, for the purpose of making an equitable apportionment of the water, that, except for the unlawful diversion of water by the defendant, the normal patronage of visitors at Adams Springs would be much greater than that of Hoberg’s Resort, and that plaintiffs would be entitled to much more water on that account in addition to the quantity necessary to maintain their vegetable garden and small dairy. But it does seem disproportionate and inequitable that for the benefit of purposes so similar in nature and in magnitude the defendant should be allowed only 4 1/6 gallons per minute, while the plaintiffs are awarded 258 gallons per minute, which approximately amounts to sixty times the quantity which the defendant receives. The evidence shows that the defendant pumped from Hoberg’s Tunnel a quantity of water varying from 20 gallons per minute to 70 gallons per minute. We are directed to no evidence that Prather Spring or Big Canyon Creek was supplied from water from any source other than the underground stream. Yet the defendant is restricted to the use of one-fifth of the supply from the underground stream, which one-fifth share was estimated to be not to exceed 6,000 gallons per day, or 4 1/6 gallons per minute. That estimate was determined on the basis of a maximum daily flow from Hoberg Tunnel of 30,000 gallons per day. It seems impossible that plaintiffs’ share of that supply, which would amount to only 24,000 gallons per day, or less than 17 gallons per minute, would be all the water accessible to them for their various needs. The court found that plaintiffs required 258 gallons per minute for the benefit of Adams Springs, independently of the quantity awarded for use on the Price Ranch. Since the underground stream, Prather Spring and Big Canyon Creek are deemed to be one common source of supply for the purpose of riparian apportionment, it appears that the court inadvertently awarded to plaintiffs all of the water of Big Canyon Creek and Prather Spring in addition to four-fifths of the water of the underground stream.
The respective owners of lands riparian to a stream are entitled to correlative and reasonably proportionate shares of the water for necessary beneficial use for agricultural, domestic or industrial purposes on their respective riparian properties. It has been said such owners of riparian land have a community interest in the water in proportion to their respective needs thereon. They are entitled to share equally in the water, taking into consideration the relative purposes for which it is necessarily and beneficially used. The apportionment of water in the present case appears to be grossly disproportionate under the circumstances of this case.
It is not necessary to determine whether the court abused its discretion in refusing to open the case for further evidence after it had been submitted for decision. That motion was presented on affidavits from which it is contended the sinking of several deep wells in the vicinity of Prather Spring definitely shows that the quantity of water in that and other springs and reservoirs in that vicinity, after unusually heavy rains in the season of 1938, was greatly increased to the extent of doubling the quantity of water in at least one of said springs, and that the court should take into consideration that increase of water in making its awards of apportionment based on specific gallons per minute. For the reason previously stated, we refrain from determining that alleged abuse of discretion.
The judgment is reversed.
ADAMS, P. J., and PEEK, J., concur.