Lead Opinion
From a judgment in favor of the defendants the plaintiff appeals. The suit was for damages and for injunction to prevent interference with certain irrigating ditches and the flow of water over the defendants' land for which the plaintiff claimed an easement.
The court found that prior to 1885 the predecessors of both the plaintiff and defendants owned in one body the lands now owned by them severally. While the lands were held in single ownership two irrigation ditches or canals were constructed across the tract. These ditches were connected with the main ditch or canal of the Fresno Canal and Land Corporation's system of irrigating ditches. Since their construction they have been the only source from which water can be obtained for the irrigation of plaintiff's land, except by the installation of a pumping plant or the acquisition of a right of way for ditches over other property. The ditches were at all times since 1885 the visible and obvious means of transporting water to the lands now owned by the plaintiff. For two or three years between 1885 and 1908 they were not used, but they were used continuously for five years commencing in 1909. In 1908 the owner of the entire tract conveyed to the defendant Terkanian one portion of the tract. Thereafter the grantor and his successors used the ditches on the portion theretofore conveyed. The plaintiff acquired his portion of the original tract in 1915. In October, 1916, "at the special instance and request of the defendant, John K. Terkanian, and one Kienitz," who was the owner of an adjoining tract over which the ditches in controversy ran, Kienitz, the plaintiff, and Terkanian entered into an agreement which is summarized in the findings, but to which it is proper to make some further reference. Kienitz was named as the party of the first part and the plaintiff, Palvutzian, and the defendant, Terkanian, were joined under the designation of the "second party." It recited the ownership of Kienitz of his land, "and that a certain ditch or canal is now located upon the premises of the first party and that said ditch or canal is now used for the purpose of furnishing water for irrigation purposes to second party." It was agreed that "in consideration that first party furnish to second party through and by means of a pipe-line [which was to be and was constructed in lieu of the old ditch on the Kienitz land] *Page 49 an amount of water equal to the quantity which has been furnished by said ditch or canal to second party; second party hereby agrees to waive any and all rights that they may or might have in said ditch and further agree that said first party shall be allowed to obliterate said ditch and substitute therefor the said proposed pipe-line, it being understood that first party shall in no manner lessen the quantity of water heretofore furnished to second party by and through said ditch or canal." Taking this contract by its four corners it appears to have been made as much for the benefit of the plaintiff as for the defendant, Terkanian; that the latter by joining in it recognized Palvutzian's right to the water as equal to his own, and that all three of the adjoining land owners recognized the right of the lower owners on the ditch to the flow of water over the lands of the upper owners, merely agreeing that on one of the upper tracts the pipe-line might be substituted for the existing ditch, thus changing the easement from the right to have the ditch maintained to one to have the same flow of water through the pipes.
Pursuant to this contract the court further found that Kienitz constructed the pipe-line and plowed up the ditches on his land; that Terkanian made a ditch connecting the Kienitz pipe-line with the westerly of the two ditches over the defendants' land leading to that of the plaintiff, but refused in April, 1918, to allow the plaintiff to connect the pipe-line with that ditch. In May, 1918, Terkanian plowed up and filled the easterly ditch and the westerly ditch so that the plaintiff could not thereafter obtain water for irrigation thereby. Sixty acres of the plaintiff's land was then planted in Thompson seedless grape-vines and sixty acres were in pasture; neither the grape-vines nor the pasture will grow or produce without irrigation during the irrigating seasons. It was then found that by reason of the acts of the defendants in plowing and filling up the ditches the plaintiff has been prevented from irrigating any portion of his premises from the old source of supply; that his grapevines and pasture have been dying out and will die out entirely unless they are irrigated; that there was water in the main canals of the irrigation system which would have flowed to and upon plaintiff's premises for irrigation if the ditches had not been plowed and filled up; that the plaintiff's land *Page 50 has depreciated in value in the sum of three hundred dollars; that the defendants threaten and intend to and will keep the ditches plowed and filled up so that the plaintiff cannot obtain water through them for the purpose of irrigating his land; the plaintiff's damages unless water be obtained for irrigation will be irreparable, the premises materially reduced in value, and the pasture and seedless grape-vines on the plaintiff's land will be rendered valueless; and that the plaintiff has no plain, speedy, or adequate remedy at law. The court further found that neither the plaintiff nor Terkanian had acquired as against the other any adverse interest in the ditches since the date of the deed to Terkanian.
[1] Upon these findings the court concluded that by the conveyance to Terkanian the plaintiff's predecessor conveyed to him all his right, title, and interest in and to the ditches and there was no express or implied right of way reserved over the land for ditches to irrigate the land he afterward conveyed to the plaintiff; that in the use of the irrigation ditches after the deed to Terkanian, plaintiff's grantor or successors in interest was without right and that Terkanian had the right to plow and fill up the ditches and is not liable for damages which the plaintiff suffered thereby. The plaintiff and appellant maintains that upon the findings of fact these conclusions of law cannot be sustained, and that in the determination of this appeal, on the findings, judgment should be entered for the plaintiff for the damages found to have been sustained by him and for injunction in accordance with the prayer of his complaint.
The respondent contends that under the facts the case is not to be differentiated from Taylor v. Avila,
If the appellant in Taylor v. Avila had presented to the court argument under the rule announced in Cheda v. Bodkin,supra, and Jersey Farm Co. v. Atlanta R. Co. supra, and the decision in Taylor v. Avila had been rendered in its present form, this court might have been warranted in concluding the effect of Taylor v. Avila was to overrule the earlier cases. That they are not overruled appears from the fact that in a later case, the rule declared in Cheda v.Bodkin, supra, was reannounced by the supreme court and that case cited as authority, the statement being "the mere fact that appellant's predecessor was the grantee of one of the respondents under a warranty deed does not prevent *Page 52
an assertion by plaintiff of a right to use the track. Where the owner of one tract of land sells part of it, and that part is burdened by an obvious easement in favor of other persons, or other parts of the larger tract, an implied understanding arises that the burdens and correlative advantages shall continue as they existed before the separation of the title." (Southern Pac. Co. v. Los Angeles Mill Co.,
The rule of law which was reannounced in Southern Pac. Co. v.Los Angeles Mill Co., supra, received lengthy and careful consideration by this court in Kallenburg v. Long,
This case may be further differentiated from Taylor v. Avila,
in that it appears in that case there was no allegation to support a reformation of the deed to express the true intent of the parties. In this case the plaintiff sets up the agreement by which Kienitz and Terkanian both recognized the right of the lower owners to the maintenance of the ditches and the flow of water, and the court found that the plaintiff entered into that agreement at the special instance and request, not alone of Kienitz, but of Terkanian. The contract on its face showed that it was made for the benefit *Page 53
both of the plaintiff and Terkanian. [2] If the facts from which an estoppel arises appear on the face of the complaint, it is not necessary that estoppel shall be pleaded in technical words. (Carpy v. Dowdell,
The judgment is reversed, with instructions to the trial court to take such further proceedings as are consistent with the views herein expressed.
Langdon, P. J., and Nourse, 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 June 7, 1920, and the following opinion then rendered thereon:
Addendum
Upon the denial of the petition for a rehearing in this case I deem it advisable to state one feature of the decision inTaylor v. Avila,
The significant fact in the case is that she had no right or interest whatever in the twenty-five acres at the time she joined in the deed of Gularte to Avila, except her implied easement, consisting of her right to maintain the ditch *Page 54
through said twenty-five acres for the benefit of her remaining fifty-five acres of the eighty acre tract, and that her deed to Avila expressly purported to convey all ditch rights or interests in ditches for irrigating. The only effect the deed could have, so far as she was concerned, was to convey her right to the ditch. There was, therefore, no room for the operation of any implication that she reserved the ditch right, since, from the circumstances, it was obvious that the only possible intention on her part in joining in the deed was to convey to the defendant her right in the said ditch over the twenty-five acre tract. The case of Taylor v. Avila is, in all respects, parallel to that of Dixon v. Schermeier,
All the Justices concurred.