87 P. 255 | Cal. Ct. App. | 1906
This is the second appeal in this case — Bree v. Wheeler,
Plaintiff, who is appellant here, contends that, upon the findings the court should have adjudged him the owner of all of said water instead of decreeing that each of the parties owned one-half thereof. The finding relating to the agreement above mentioned is in substantial accord with the averment of the amended answer in that behalf, and in substance is as follows: In 1885, each of the parties hereto was claiming the water in question, and defendant was using it for irrigating his land, against the protest of plaintiff. They talked the matter over, and it was orally agreed, to avoid litigation and in settlementof their respective rights to the use of the water, that they should divide it, the plaintiff taking it during the night and the defendant during the daytime. This method of division continued for two seasons, whereupon, plaintiff being dissatisfied, the manner of division was changed by mutual consent, and a measuring box was put in the stream which equitably and fairly divided the water, each party taking one-half thereof both day and night. This method continued for two seasons, but in 1889 plaintiff again became dissatisfied, and wrongfully tore out the measuring box. Then a board was placed in the stream by defendant, at his own expense, at a level, with two holes of equal size, to divide the water equally, and plaintiff removed this appliance. The defendant then took all the water, leaving none for plaintiff. After the recital of the foregoing facts, the finding reads as follows: "Defendant continued to divide the water as long as plaintiff would permit him to do so. In order to divide the same it was necessary that a measuring box or other suitable appliance be maintained at the point of diversion. Unless such means of division was maintained, defendant could not divide the water. This condition of affairs continued from 1889 until the commencement of this action."
As the plaintiff interrupted the defendant's use annually, no title by adverse possession could accrue, and hence the *112 rights of the latter and the validity of the judgment depend entirely upon the effect of the compromise agreement or settlement.
Water rights are classed as real property, and hence under the general rule any agreement relating thereto must be in writing. (Code Civ. Proc., secs. 1624, 1971; Hayes v. Fine,
There is another principle of law under which the agreement must be held binding. It has been held repeatedly and with practical unanimity that an oral agreement fixing a dividing line between owners of land is not within the statute of frauds, and that when the line is in doubt or dispute a settlement between the owners determines the location of the existing estate of each, and when followed by possession and occupancy, binds them in equity and at law as well. "If the parties have carried the agreement into execution, and entered into possession in accordance with it, the courts will not disturb it, though both parties were mistaken as to the true location of the line." (Jones on Real Property, secs. 354, 358;White v. Spreckels,
This doctrine is based on the common sense proposition that when a dispute exists between two parties, they may adjust their differences by mutual agreement, which, when executed by them will be held binding as to each, and we can think of no reason in law or logic why the principle thus applied to land should not be applied to a case where the parties have deliberately entered into an agreement settling disputed water rights, which agreement was immediately carried into effect and was acquiesced in for a considerable period of time.
And if such an agreement relating to land cannot be disturbed by the parties after it has been carried into effect, a similar executed agreement relating to another class of real property must be held equally efficacious. (Jones on Real Property, secs. 358, 359.) It must, therefore, be held that plaintiff could not repudiate the agreement made, carried into effect, and acquiesced in by him and by defendant. True, both might, by mutual agreement, repudiate it, but neither alone could do so. The court expressly finds that defendant performed the agreement as long as he was permitted to do so by plaintiff, and his subsequent use of the water did not destroy his right to the quantum fixed upon by mutual consent. It is the fixed policy of the law to encourage the settlement of disputes and the prevention of litigation, and when such settlement has been made, acted upon and acquiesced in, parties will not be permitted to violate the compact unless circumstances of fraud or undue influence are shown. (Downing v. Murray,
It would be strange indeed if the plaintiff, relying on his original claim and free to assail any and all rights claimed by defendant, could confine the latter to rights obtained under an agreement, which by the very commencement of the action plaintiff was attempting to repudiate. The findings are not inconsistent. The court in effect finds that plaintiff *114 had a right to the whole of the water, which right was impaired only by his voluntary act in entering into and effectuating the agreement which vested in defendant the right to one-half thereof.
The judgment is affirmed.
Buckles, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 14, 1906.