376 IRRIGATION INVESTIGATIONS IN CALIFORNIA. 



and the defendants be enjoined forever from obstructing and diverting the natural 

 and full flow of said water in said river. The attorneys for the plaintifl's failed to 

 ofl'er proof that the dam was water-tight in its connection with the bed rock of the 

 stream, and therefore failed to prove that the dam obstructed the natural flow of the 

 stream. It was chiefly on this ground that judgment was rendered for the defendants 

 by Judge J. W. Hughes, from whose findings the following notes have been extracted: 



(1) That Otay Creek has flowed during a portion of each year, except during years of extraordi- 

 nary drought; that the flow of the water varies from none at all to a flow of short intervals, usually 

 during the months of January and February, and depends entirely ujjon the frequency and extent of 

 the local rainfall. 



******* 



(16) That none of the lands of the plaintiffs, described in findings 2 to 15, are irrigated by said 

 Otay Creek, except during a short period in the wet season and immediately following heavy rains; 

 that wells have been dug in the bottom of said river bed, ranging in depth from 14 to 2.5 feet, from 

 which some of the plaintiffs obtain water for domestic and other uses; that said wells are supplied by 

 the waters which percolate through the soil and formation underlying the bed of said river and said 

 Otay Valley, which is of a porous nature; that during the pa-st two years, owing to extraordinary 

 drought, some of said wells have not afforded the supply of water drawn therefrom in other and former 

 years; that said river does not now and never has afforded water for household and domestic purposes 

 or for irrigating plaintiffs' lands during the irrigation season, but during the time mentioned in the 

 complaint the supply of water used by plaintiffs was secured solely and alone by means of said wells, 

 which is the only source of supply, except the Otay Reservoir 5 or 9 miles distant from the lands. 



(19) On June 15, 1893, J. A. Flint posted a notice appropriating "5,000 miner's inches of water, 

 and in seasons of freshet or high water the whole of the water here flowing to be here stored in a 

 reservoir; " that within sixty days the said Joseph A. Flint commenced erection of the dam mentioned 

 in said notice, so as to store and impound the amount of water appropriated, and he and his successors 

 have since diligently and uninterruptedly prosecuted the work from said date to the date of this action, 

 and have expended upward of $300,000 in tlie work. The Southern California Mountain Water Com- 

 pany acquired these rights so appropriated from J. A. Flint; that since 1893 the dam has impounded 

 all the water flowing down said stream, except during a short time in January, 1895, when the flood 

 waters ran over said dam at its then height; that the claim to own all the waters of Otay Creek for 

 more than four years prior to the commencement of this action has been continuous, opep, notorious, 

 uninterrupted, and adverse to these plaintiffs; * * * that said dam is constructed above plaintiffs' 

 lands, but does not obstruct other than flood waters, which if not obstructed would reach San Diego 

 Bay at a distance of about 15 miles; that said obstruction has not deprived and will not deprive plain- 

 tiffs of the use of water for any purposes, or cause any injurj- or damage to any or either of them. 



The following findings asked for by the defendants were denied: 



That the defendant, the Southern California Mountain Water Company, has a prescriptive right 

 to maintain the dam described in the pleadings herein, and impound in said reservoir and divert the 

 waters of said Otay Creek, to the extent and in accordance with said notice of appropriation. 



That by reason of their failure to protest or object to the construction of the said dam by the 

 Southern California Mountain Water Company until after its completion at a cost of over $300,000, 

 plaintiffs are estopped from maintaining this action against the Southern California Mountam Water 

 Comi)any for the removal of said dam. 



The fact that these two findings were not allowed or sustained, and that the case 

 was practically decided on a technicality, illustrates the urgent necessitj' that exists 

 for a change in the application of the doctrine of riparian rights to intermittent 

 streams or torrents, before they can be developed and utilized for irrigation. 



