184 P. 502 | Cal. Ct. App. | 1919
This is an appeal by the plaintiff from a judgment of the superior court in and for Napa County, dividing the waters of Ritchie Creek between the plaintiff and the defendants. The principal question presented to this court is as to the construction of certain deeds in the record. The facts surrounding the execution of said deeds are briefly as follows: From 1867 to 1905 George W. Tucker, the father of the defendant Charles L. Tucker, owned 146 acres of land situated along Ritchie Creek, a map of which land is in evidence in this action. During a part of this time he sold about three thousand gallons per day of the water of said creek to the county, and in addition used what he required thereof for domestic purposes in and about his house and barn. In 1905 he deeded his property to his children, who held it as tenants in common. One of the children died shortly thereafter, and the remaining children partitioned the land among themselves by two deeds, which it is conceded were executed as a part of the same transaction, and which deeds are the key to the solution of the controversy here. In the first deed from Charles L. Tucker, one of the respondents here, and George H. Tucker, to their sisters, Lila J. Eachus and Martha *55 A. Culver, a portion of the land was conveyed, which has since by mesne conveyances become the property of the plaintiff. This land is higher on the stream than the defendants' land. The deed conveying it contains a clause granting to plaintiff's predecessors the right to the amount of water diverted by George W. Tucker at a point in Ritchie Creek specified therein. At the same time another deed was executed by Eachus, Culver, and George H. Tucker to Charles L. Tucker, respondent, conveying an undivided three-quarter interest in the portion of the land now owned by defendant and containing a clause granting to said Charles L. Tucker the right to divert water from a point specified and situated upon the land now held by the plaintiff, after the amount formerly diverted by George W. Tucker had been reserved. Defendant has maintained this point of diversion up to the time of the action. Plaintiff has resided on his land for about four years and has diverted water from a point below defendant's said point of diversion until May, 1917, when plaintiff placed a five-inch pipe in the stream above defendant's point of diversion and diverted substantially all the water of the stream, so that the defendant was deprived of water necessary for domestic and irrigation purposes. Defendant removed the pipe-line of plaintiff so placed, and plaintiff sought an injunction.
The clauses in the deeds upon which plaintiff and appellant bases his claim were construed by the trial court in a manner which is in accordance with our own conclusions. Defendant contends that as a riparian owner, he is entitled to his proportion of the water except as that right is modified by the deeds. The first deed in which Charles L. and George H. Tucker are the grantors and Lila J. Eachus and Martha A. Culver, plaintiff's predecessors in title, are the grantees, conveys: "All of the water right acquired, or the right to divert the waters of Ritchie creek acquired by George Tucker, the grantor of all the parties to this instrument, at any time in connection with the above described tract, or in connection with any other tract of which the foregoing tract was a part and which said water is now diverted at a point in Ritchie creek southwest of the most southerly point of the above described land."
The second deed in which Lila J. Eachus, Martha C. Culver, and George H. Tucker are grantors and Charles L. *56
Tucker, the defendant, is the grantee, contains the following language: "Granting to the said Charles L. Tucker the right to divert water from Ritchie creek at a point about four hundred and fifty feet southwest of the main county road, and below the point where F. Salmina Co. now divert water from said creek; it being understood and agreed that Charles L. Tucker shall only have the right and privilege of using and diverting the overflow from Ritchie creek after Lila J. Eachus and Martha A. Culver, or either of them, have used all of the water formerly held, used or claimed by George Tucker, the former owner of the 146 acre tract this day divided among the parties hereto, they may desire for any and all purposes, upon the land this day deeded to them, and after said F. Salmina Co. has used its share of said water; and it is understood and agreed that no right, title or interest in any water right of said George Tucker, or any water right acquired since said property was granted to the parties hereto is hereby granted." This deed reserves to the grantors only the amount of water formerly "held, used, or claimed" by George Tucker. The court admitted evidence of the amount of water used by George Tucker, and found that the amount was about three thousand gallons per day sold to the county, and sufficient water for his domestic uses about his home and barn, and the court therefore allowed the plaintiff such amounts before allowing the defendant any water at all, and after such amounts were taken by the plaintiff, if any water remained, the court allowed the defendant sufficient water for his domestic uses and divided the balance, if any, between the plaintiff and defendant for irrigation in the proportion that the acreage of each bore to the entire acreage of the riparian land. [1] The decisions are to the effect that in running water there can be no absolute ownership; that riparian rights do not mean ownership in any special portion of the water of a stream until such water is actually taken and used. (Kidd v. Laird,
As the deeds merely reserved to the plaintiff's predecessors such amounts of water as the court found were used by George Tucker — the rights in the remainder of the water of the creek, as between the plaintiff and the defendant, are governed by the law applicable to riparian owners. [3] In answer to appellant's contention that he is entitled to use the water for irrigation on his land before the defendant is entitled to any water at all for domestic or other uses, we quote the language found in the decision in the case of Alta Land Water Co. v.Hancock,
[4] It is not contended that the land of the defendant is nonriparian land. As a riparian proprietor, he is entitled, it is true, only to the water after it reaches his land in its natural flow, and if in the natural flow of the stream there is insufficient water conducted to defendant's land for his uses, he has not, as a riparian owner merely, the right to go on the land of an upper proprietor and divert the water from there. (Anaheim Union Water Co. v. Fuller,
[5] With respect to the fractional division of the water for purposes of irrigation, there is no evidence before the court as to whether or not there are yet other lower riparian owners, but if there are, of course, the rights of such owners are not affected by this judgment. As between the parties hereto, the division seems to us proper and reasonable, and if there are other parties who have yet independent rights, in a proper proceeding the rights of the riparian proprietors now before the court may be declared to be subject to such rights of such third parties, but such adjudication would not change the relative rights of the parties hereto as between each other.
Appellant objects to the holding of the trial court that certain land which was owned by the plaintiff but was divided from his main tract and from Ritchie Creek by a strip of land used for the operation of an electric railroad was nonriparian land. The fee to the strip of land occupied by the railroad had been granted to said company by plaintiff's predecessor in title. It becomes unnecessary for us to pass upon this question of law, because, as pointed out by the respondent, this ruling was not injurious to the plaintiff, for the reason that the court held that the land of both the plaintiff and defendant lying north of said railroad was nonriparian, and, as shown by the map, more of the defendant's land was thus held to be nonriparian than of the plaintiff. As the water was divided in proportion to the acreage of riparian land held by each, after reserving certain amounts to the plaintiff, the plaintiff would have received less water had the court held this strip of land to be riparian.
Appellant objects that he was not allowed to introduce evidence of the negotiations and understandings of the parties *60 to the deeds at the time they were executed. [6] The rule is, of course, beyond dispute that when written instruments are not ambiguous, they may not be varied by parol testimony. The plaintiff himself admits that he does not consider these instruments ambiguous, but relies upon certain language used by the court in the course of the trial which he contends shows that the court considered these instruments ambiguous. The answer to this contention is that in arriving at its judgment, the court did not treat the instruments as ambiguous, but construed them without the aid of parol evidence, and this court finds that construction to be correct. It cannot be held, therefore, that these instruments are ambiguous, requiring the aid of parol testimony for their interpretation.
The judgment is affirmed.
Haven, J., and Brittain, 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 October 23, 1919.
All the Justices concurred.
