125 Cal. 444 | Cal. | 1899
A rehearing of this cause was ordered after decision in Department. We refer to the Department opinion for a statement of the facts to he considered, and we adopt its conclusions, except upon one point.
With respect to the rights of the parties to the use of the
But, aside from this, the least that can be said of this provision of the contract is that it is ambiguous and doubtful. Such being the case, the practical construction placed upon it by the parties must control.
It appears that the defendant, from the commencement of its development of water in 1887 down to the trial of this action, has been conducting all the water “flowing in the glen”—natural and artificial mingled together—through its pipe across plaintiff’s land. It does not lie in defendant’s mouth to say that it has been doing this without right, and its only right is derived from the contract of 1860. It has thus put its construction upon that contract, and the plaintiff having acquiesced, it must be held that the parties have themselves determined that the defendant has the right under the contract to conduct the developed water across the plaintiff’s land. If' so, it follows that the plaintiff has the right to use it on two days of the week, so long as it is so conducted. If one stipulation of the contract applies to the flow artificially created, so must the others. We do not decide that the defendant is obliged to continue to con
The judgment and order of the superior court are reversed, and the cause remanded for further proceedings in accordance with the opinion of the Department as herein modified.
Henshaw, J., Temple, J., and McFarland, J., concurred.
The following is the opinion rendered in Department Two, September 10, 1898, referred to in the foregoing opinion:
In the year 1860 one B. D. Wilson owned a considerable body of land, which included the source and upper portion of the channel of a stream of water flowing in a canyon or glen on said land and called the Mill stream. Adjacent on the south to Wilson’s land, and traversed by the lower course of said stream, was a tract of public land, one hundred and fifty-four acres in extent, occupied by one B. J. 0. Kewen, to which said Kewen afterward acquired title. For the purpose of apportioning the flow of said stream between themselves for irrigation and other uses, the said Wilson and Kewen entered into a written contract, of date May 7, 1860, whereby Wilson granted to Kewen the right to enter on his, Wilson’s, aforesaid land on the west side of said canyon and take the water flowing therein through a certain “upper water ditch” and use the same for irrigating the land of him, the said Kewen, during Friday' and Saturday of each week; Kewen on his part granted to Wilson the right of way over his said tract of one hundred and fifty-four acres for the construction of ditches, flumes, and aqueducts, and to conduct water through the same to such outside points as Wilson might select, subject to the right of Kewen to use for irrigating his land, during two daj^s in the week as aforesaid, the water flowing in said “upper ditch, or in any water ditch, flume or aqueduct used, dug, or erected” by Wilson on
Said contract of 1860, and a statement of the circumstances inducing the same, appear at length in the opinion of the chief justice rendered in a former action between the parties here and reported in Alhambra etc. Water Co. v. Mayberry, 88 Cal. 68. That action was begun by the water company (defendant in the present case) on April 18, 1886, against Mayberry (the present plaintiff), and had for its principal object the determination of the rights of the parties in the water which was the subject of said contract. The judgment of the superior court therein was rendered on December 28, 1887, in favor of the water company, it contained the following provisions among others: That May-berry is entitled to divert and use, on Friday and Saturday of each, week, all or so much as may be necessary, of the waters of said canyon for the purpose of irrigating, on those days only, any or all of the tract of one hundred and fifty-four acres formerly owned by Kewen. “Also the right to divert and use on said days, and for said purpose of irrigating said lands, any water flowing in any ditch, flume, or aqueduct made, constructed, or used by said Wilson .... or by the plaintiff .... over or across the said one hundred and fifty-four acre tract of land.” That the water company is entitled to the exclusive use of the waters of said canyon, subject to the expressly specified rights of Mayberry; and that it has, and he has not, the right to develop water on that portion of the fifty-acre tract lying in said canyon. On appeal taken by Mayberry, this court affirmed the judgment, except in the particular last stated, as to which it was determined that Mayberry has the right to develop water
Pending said former action, viz., in July, 1887, the water company began a series of explorations for water on its own land in the said canyon above the holdings of Mayberry, and continued the same during the period of some five years, and by means of wells, tunnels, et cetera, it tapped sources of subterranean supply and conducted the same into the channel of said stream, thereby adding to the volume of the same a quantity of water which would not naturally flow therein at all; speaking approximately, and not meaning to decide the fact, the flow of the stream was in this manner about doubled. All the water when used by the water company is conducted through a large pipe laid across the said one hundred and fifty-four acre tract—the head of the pipe being above the northerly line-of that tract and on the said fifty-acre parcel.
1. The present action was instituted by Mayberry on July 17, 1894. The main question involved is, whether he may use the water added to the stream as aforesaid in the same manner that he uses the natural flow; he claims that right both under the contract of 1860 and the judgment in said former action. The chief privilege secured to Kewen by said contract was the right to enter on Wilson’s land and take on Fridays and Saturdays “the water flowing in said glen”; these words reasonably denote the then existing natural flow of the stream, and do not reasonably denote water to be in the future artificially developed or imported by Wilson or his assigns and turned, into the channel. The right to the artificial increment is quite distinct from the title to the natural flow, and the owner thereof may reclaim it from the channel. (Butte Canal Co. v. Vaughn, 11 Cal. 143; 70 Am. Dec. 769; Paige v. Rocky etc. Canal Co., 83 Cal. 84.) It is true that after the description in the contract of the privileges accorded to Wilson of constructing conduits across the land of Kewen and leading water through them, there followed a clause reaflirming the right of Kewen to use for irrigation the water flowing in the upper ditch “or in any water ditch, flume, or aqueduct used, dug, or erected” on his land pursuant to the permission of the contract; but we understand this provision to
When said former action was begun the water now in controversy formed no part of the stream, but was as absolutely, the property of the water company as were the solid strata through which it percolated or by which it was restrained from emerging in the channel (Gould v. Eaton, 111 Cal. 639, and eases cited); as we read the pleadings in that suit (which are brought up in the record here), they submitted for adjudication no issues concerning this water. There were some references in the complaint to the right to develop water, but, considered in their context, it is apparent that they were pointed to the acts of Mayberry on the fifty-acre tract—the water company claiming, in virtue of the reservation of water rights in the deed of November 29, 1871, that Mayberry had not the right to develop water on that tract, a contention which was overruled in this court. Understanding said judgment in the light of the pleadings on which it rested and the facts then existing, we think it plain that it does not operate to enlarge the meaning of the contract of 1860 in Mayberry’s favor. (Lillis v. Emigrant Ditch Co., 95 Cal. 553; Caperton v. Schmidt, 26 Cal. 479; 85 Am. Dec. 187.) We are fully mindful of the argument founded on what May-berry appears to consider a cumulation of rights decreed to him in that judgment—it declaring that he is entitled to divert and use for two days of the week all the water of the canyon necessary to irrigate the described land, and “also the right to divert and use on said days and for said purpose .... any water flowing in any ditch, flume, et cetera, made, constructed, or used by Wilson or his successors in interest .... over or across” the land of plaintiff. This provision can apply only to rights which were sub judice in that action; and, in our opinion, it has
2. Previous to November, 1892, plaintiff was accustomed to divert the water for irrigation on Fridays and Saturdays from the aqueducts of plaintiff into which it flowed from the stream. At that time defendant undertook to apportion to plaintiff the quantity of water which it assumed to be the natural flow, and thereafter measured the same by means of certain weirs into his diverting appliances, retaining in its own aqueducts the residue which was assumed to be the added or developed water. The amount of water which defendant thus undertook to measure to plaintiff was fifty inches under four-inch pressure, and the court found that the natural flow during the irrigating season does not exceed that amount. One of the objects of the action is to enjoin defendant from interfering with the use of the water to which plaintiff is entitled; the court found in effect that the said conduct of defendant respecting the measurement of the water constitutes no interference with plaintiff’s rights, and that he will receive in that manner all the water he is entitled to.
These findings are not sustained by the evidence. There is nothing in the contract of 1860 which fixes the amount of water to be used by Kewen at any quantity less or greater than the whole natural flow on the two specified days when necessary for the irrigation of his tract. The fact, if such fact there is, that plaintiff does not at present use or need all the natural flow to irrigate the land as he now cultivates it, does not authorize a restriction of his privileges under the contract; his necessities for use of the water to irrigate his land may increase in the future. The flow doubtless varies with the annual rainfall and with the progress of the dry season; the evidence of defendant’s own engineers of a measurement made with great care on June-24, 1887, just before defendant began the work of developing water, shows that fifty-five inches then flowed in the channel; we do not find that the force of this evidence is avoided
3. There were certain findings on which are founded a provision of the judgment that defendant is the owner (subject to qualifications not necessary to state) “of all the water rights in said Mill stream and of all the land through which the same flows, from its source to the point where it is conducted into defendant’s main pipes.” As the fifty-acre tract of land conveyed by Wilson to Kewen in 1871 includes part of the channel, and as the flume through which the water is conducted to defendant’s -main pipes lies also on that tract, the findings and portion of the judgment just mentioned are broader than the facts warrant; they perhaps cast some cloud on the rights of plaintiff in said fifty-acre parcel, and should be modified.
Some other points are made by appellant, but considering the views above advanced it is believed that they become immaterial. While we are satisfied that upon the main subject of dispute— the use of water developed by defendant—the decision of the court below was right, yet because of the errors in minor particulars we have indicated, and to the end that the same may be corrected, the judgment and order denying a new trial should be reversed.
For the reasons given in the foregoing opinion the judgment and order denying a new trial are reversed.
McFarland, J., Temple, J., Henshaw, J.
Rehearing denied.