IRRIGATION PROBLEMS IN" SALINAS VALLEY. 205 



prior to the action. The ditch ran to the border of plaintiff'tj land, and plaintiff had 

 used the waste water by leave of defendants, not in writing. 



^Z(7.— Defendants owned the water absoluteh'. Therefore plaintiff never 

 acquii'ed anj' riparian right. His license was revocable at any time. 



BtniROWS V. BTJRROWS. 



■ (82Cal., 564.) 



Facts. — In 1877 defendant dug a ditch and ajipropriated the waters of Muddy 

 Creek, which was then on the public domain, and used them for domestic and irri- 

 gating purposes. He failed, however, to post the notice required by section 1415 of 

 the Civil Code. In 1883 plaintiff gained title to land on the creek from the United 

 States. At most seasons there was enough water for all parties, but for a portion 

 of the year there was not. The lower court held that the water should be divided 

 during the dry season. Plaintiff disputed the validity of defendant's appropriation. 



Held. — Defendant's appropriation was valid. The failure to post the notice did 

 not make it invalid. The object of the notice is to allow the appropriator to take 

 advantage of the doctrine of relation. The court intimated that the lower court went 

 too far in dividing the water, but as defendant did not complain the judgment was 

 affirmed. 



SMITH V. CORBIT. 



(lieCal., 587.) 



FacU. — Mrs. M. had a parcel of land on which a stream had its source and flowed 

 for some distance. She used the water for domestic and irrigating purposes. She 

 conveyed one parcel to D, who from the time of his purchase used one-half of the 

 water for the above purposes. Later he sold to plaintiffs who continued the use. 

 Mrs. M. sold another parcel above plaintiff's to defendant. He used part of the water 

 for the same purposes. There was a dam on his land which had been put there by 

 Mrs. M. He moved the point of diversion higher up the stream. In 1894 the stream 

 was not full enough to supplj' defendant's diversion, and consequently he took nearly 

 all of the water, but did not waste any. 



Held. — Plaintiff is entitled to recover. By her grant Mrs. M. gave him an ease- 

 ment. ''The general rule of law is that when a part}' grants u thing he, b}' implication, 

 grants whatever is incident to it and necessary to its beneficial enjoyment." Mrs. M. 

 had used the water for the purposes for which plaintiff used it and must be presumed 

 to have granted a right to the water which was I'easonably necessaiy. That this was 

 the intention was shown by her acquiesence in plaintiff's user. 



Defendant had a right to change the place of diversion, provided he did not 

 injuriously affect the rights of others. It did not entitle him to more than one-half 

 the water of the stream, however. 



Aside from plaintiff's easement, both parties were entitled to have their natural 

 wants supplied before any water could be used for irrigation. After that each would 

 be entitled to a reasonable use for irrigation. The court might therefore apportion 

 the flow bj' periods of time. 



