73 P. 826 | Cal. | 1903
The appeal is by Joseph Webster and M.M. Webster, his wife, from a judgment in favor of the plaintiff against said appellants.
The action is to quiet title to a one-fourth interest in the water flowing in a certain stream in the Yucaipe (or Potato) Canon, in San Bernardino County. The court found that on April 23, 1890, the defendant and appellant Joseph Webster conveyed to one A.W. Eames, for the sum of five hundred dollars, a one-twelfth interest in the water flowing in said Yucaipe Canon, and the right to convey said water so sold by a ditch or otherwise across section 28, township 1 south, range 1 west, S.B.B. and M., and that thereafter, on August 12, 1892, said Eames conveyed said water-right and right of way for the same to the plaintiff; and also found that, on August 15, 1892, defendant Joseph Webster and M.M. Webster, his wife, conveyed to the plaintiff, for the sum of two thousand dollars, an undivided one sixth of the water flowing in said stream, being a part of the water located by said Joseph Webster in 1875, and a right of way to pipe, flume, or ditch across the lands of the grantors. On October 19, 1896, Webster entered fractional section 28 under the Homestead Law.
It appears by defendants' bill of exceptions, brought up on appeal, that defendants objected to the introduction of said deeds in evidence on the trial, on the ground that said conveyances were against public policy and void, as being against the policy of the homestead laws of the United States, and that the patent issued to Joseph Webster upon his said homestead entry, should not inure to his grantee's benefit, nor feed the title mentioned in said prior deeds made to the plaintiff, or to said Eames; which objections were overruled by the court, and defendants excepted thereto.
The only point made by the appellants is in support of the objection to the introduction of the deeds in question, and the only authorities cited in support of the appellants' contention are sections 2290 and 2291 of the Revised Statutes of the United States, and Anderson v. Carkins,
Anderson v. Carkins,
In this case the conveyance of the water-rights in question was about four years before the homestead entry, and there is nothing to show that either of the parties to such conveyances at that time contemplated that the land should be obtained from the government by a homestead entry on the part of Webster, or that the parties were not dealing in a fair and honorable way. To the complaint in this case, the answer on the part of defendants is simply a denial of the right of the plaintiff, upon information and belief, and an allegation that the defendants did claim some right, title, or interest adverse to the plaintiff. There is no issue raised by the pleadings that the claim on the part of the plaintiff is founded upon any transaction entered into against public policy.
Further, the conveyances here were not strictly speaking for the land or part of the same, but for an interest in appropriated water and the right to convey the same over and across the land; and by the seventeenth section of an amendatory act of Congress of July 9, 1870, it is provided "that all patents granted, or pre-emptions, or homesteads allowed shall be subject to any vested and accrued water-rights, or rights to ditches and reservoirs used in connection with such water-rights, as may have been acquired under or recognized by the ninth section of the act of which this is amendatory," — to wit, the act of July 26, 1866. (U.S. Comp. Stats., sec. 2340.) The principle that prior appropriation of water on the public lands in California, where its artificial use for agricultural, mining, and other like purposes is *187
absolutely essential, is lawful has all along been recognized and sanctioned by the decisions of the supreme court of the United States, as well as those of this state. (Osgood v. El DoradoWater etc. Co.,
Our code, following the common-law rule, makes a distinction between real property and land — one of the elements of real property. "Real or immovable property consists of: 1. Land; 2. That which is affixed to land; 3. That which is incidental or appurtenant to land; 4. That which is immovable by law." "Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance." "A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees," etc. "A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or watercourse, or of a passage for light, air, or heat from or across the land of another." (Civ. Code, secs. 658, 659, 660, 662.)
The United States Homestead Law, it will be seen, prohibits only an agreement to sell the land, or any part thereof, or thetimber thereon. The Webster deeds in question did not purport to convey the land, or any part thereof, but only an undivided portion of the water flowing in the said stream, or canon, "being on or near section 28," and also the right of way to convey said water by ditch or otherwise across said lands, and they were not made in contemplation of the homestead entry. Such a transaction, so far from being prohibited by the acts of Congress in question, or against public policy, is favored and encouraged not only by the legislation of Congress, but by the decisions of the courts, federal and state.
Judgment affirmed.
Shaw, J., and Angellotti, J., concurred. *188