76 Cal. 197 | Cal. | 1888
The court below, on motion of defendants’ attorney, struck out a part of the complaint. The defendants then answered, and upon the issues raised by them the case was tried and judgment entered in their favor. The plaintiff appealed, and in support of his appeal insists that the court erred in striking out a portion of his complaint.
The action was brought to obtain an injunction restraining defendants from diverting from the land of plaintiff the waters of a small stream called Arroyo Permanente, and for damages.
The complaint alleged that for more than twenty years plaintiff had owned and occupied a farm in Santa Clara County, containing about eleven hundred acres, through which a running stream of water, called Arroyo Permanente, had its natural course or bed; that plaintiff had kept a large number of cattle, horses, and sheep on his farm, and had obtained water for them and for domestic purposes at his house from the stream referred to until the waters thereof were diverted by defendants; that in 1865 one Robert McKubin owned and occupied a tract of land bordering on the Arroyo Permanente above the plaintiff's farm, and that in that year plaintiff and McKubin jointly constructed a wooden flume from a point on the stream above the latter’s land to a point
It is then further alleged that defendants have built a dam across the stream on the land of defendant Francesco, and have placed in position a hydraulic ram below the dam, and by means thereof they force water from the creek through a pipe upon the land of defendant and use the same for irrigation and other purposes; that by means of the dam and ram they divert and cause to be absorbed so much of the water of the stream that the same has ceased to flow to and upon the land of plaintiff', and threaten and will continue so to.do unless restrained, and that plaintiff has sustained damages in the sum of five thousand five hundred dollars.
The part of the complaint stricken out was that commencing with the averments about the construction of the flume and pipes by plaintiff and McKubin in 1865, and ending with the disconnecting of plaintiff’s cement
The respondents justify the action of the court upon the ground that the part stricken out showed only a parol license, which was subject to be and was revoked by them. The appellant, on the other hand, insists that under his averments he could have proved that he had acquired an easement over respondents’ land which was not subject to their revocation.
A license in respect to real estate is defined to be: “An authority to do a particular act, or series of acts, on another’s land without possessing any estate therein.” (1 Washburn on Beal Property, 398, side page, and authorities cited.) And the general rule is, that a mere license may be revoked at any time at the pleasure of the licensor. (Potter v. Mercer, 53 Cal. 667; Cronkhite v. Cronkhite, 94 N. Y. 323; Wiseman v. Lucksinger, 84 N„ Y. 31; 38 Am. Rep. 479.)
“An easement is said to be a permanent interest in another’s land, with a right at all times to enter and enjoy it, and must therefore be founded upon a grant by deed or writing, or upon prescription.” (2 Hilliard on Real Property, 3d ed., 5; 1 Washburn on Beal Property, 398.)
And the owner of an easement has the right at all reasonable times to enter on the servient premises and make any necessary repairs. (2 Wait’s Actions and Defenses, 743, and cases cited.)
It will be observed that according to plaintiff’s averments, the flume, tank, and pipes were constructed, and the water was diverted and distributed under and in accordance with an agreement made between plaintiff and McKubin, but whether that agreement was in writing or not, so as to take the case out of the statute of frauds, does not appear.
It is settled law that where one has agreed to sell a piece of real property, and an action is brought to en
Now, if this be the rule where one agrees to transfer to another his whole interest in real property, why should it not be the rule when he agrees only to transfer some smaller interest or create an easement? We are unable to perceive any distinction between the two supposed cases.
We think the complaint was sufficient, and under it the plaintiff should have been permitted to prove, if he could, that he acquired an easement to conduct water across defendants’ land to his own land which is still a subsisting right.
The court erred in striking out a part of the complaint, and for this error the judgment and order should be reversed, and the cause remanded for a new trial.
Foote, C., and Hayne, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial.
Hearing in Bank denied.