This аppeal is from a judgment enjoining defendant from obstructing and interfering with plaintiff’s maintenance and use of an irrigating ditch across a twenty-four-foot strip of land, the fee title to whiсh is claimed by both parties.
The history of the transaction as appears from the record shows that some years prior to this litigation one Hurlburt and the respondent Parks owned as tenants in common a tract of land comprising 176 acres. Later, by an interchange of deeds, Hurlburt became the owner of the north seventy-six acres of the tract and Parks became the owner of the south one hundred acres. During the period that Hurlburt and Parks owned the entire property in common there existed a roadway running from the northern trаct, upon which farm buildings were situated, through and near the center of the southern tract, and to and connecting with a county road on the south. On October 31, 1908, about three months after the deeds between Hurlburt and Parks conveying these separate tracts in severalty Parks executed a deed to Hurlburt of the strip of land in dispute which followed the line of this roadway, by a conveyance containing in its granting clause the following recital: “Does grant, bargain and convey: All of that certain lot or parcel of land situate, lying and being in the County of Stanislaus, State of California, and bounded and particu *153 larly described as follows.” Here follows a description by courses and distances of this 'disputed strip of land, with the сoncluding words: “This grant is for the-of granting to party of the second part a right of way from his premises to the County Road.” Subsequently, by mesne conveyance from Hurlburt, the north seventy-six acres and the strip in dispute were conveyed by straight bargain and sale deeds to the defendant Gates.
In this connection it will be helpful to an understanding of the entire situation to also state that the irrigation ditch in question was located upon the 176 acres of land while the entire tract was owned in common by Hurlburt and Parks, and extended. from the northerly line of the tract toward the east side across the seventy-six acre tract, and partly across the one hundred acre tract, and then turned west and extended across this roadway into thе westerly side of the one hundred acre tract. It was constructed and used for conveying water from the Turlock irrigation canals for the irrigation of these lands of Hurlburt and Parks, and wаs used by respondent Parks thereafter during all the time subsequent to his acquiring title in severalty to the south one hundred acres and up to the time of the commencement of this action.
It is for filling up and obstructing this ditch where it crosses the road, by defendant, that this injunction was sought.
The contention of appellant is that the deed of October 31, 1908, vested in him the title in fee to this strip of land. Respondent contends that the deed only conveyed an easement for right of way for road purposes, and that in any event he has acquired the right to maintain his irrigation ditch thereon by adverse user .and by reason of the fact that an easement was created in his favor to maintain such ditch as an incident of the conveyances between himself and his co-owner, Hurlburt.
The trial court found in favor of respondent on both propositions. First, “That the deed of October 31, 1908, grants to the defendant and his predecеssors in interest a right of way or easement for a road to the land therein described reserving to plaintiff the title in fee to said land.” Second, “That irrespective of the deed the plaintiff has a *154 prescriptive right to run water through the said ditch, over, through and across said right of way.”
It may ¡bе conceded that in this instrument the grantor used apt words to convey a fee title if we refer only to the language of the granting clause including and preceding the description of the land affected. But a deed is to be construed as any other contract, from its four corners, and when we find in the granting clause immediately following the word's of grant, bargain, and sale, and the description, the declaration of the grantor that “this grant is for the purpose of granting to party of the second part a right of way from his premises to the сounty road,” there can be no question but that the expressed intention is to limit the interest conveyed to an easement for a right of way. (The word “purpose” does not appear in the deed in the connection given in the above quotation, but in construing the language used both parties seem to concede that such was the purport of thе omitted word, and there can be no doubt from the context that such was the fact.)
*155 Section 1105 of the Civil Code declares that: “A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended,” and grants are to be interpreted as any other contract. (Civ. Code, see. 1066.)
In
Barnett
v.
Barnett,
Misconception of the effect of the qualifying language used in this deed has doubtless resulted from failing to distinguish between the use of the words “for the purpose of granting a right of way” as a limitation upon the interest conveyed, and the use of the words in cases cited by appellant merely expressing the purpose of making the grant, as indicating the grantor’s motive, as in an unlimited grant of described land “for a road to and from said premises.”
(Soukup
v.
Topka,
There is a vast difference between a grant for purposes of “right of way” for a road and a grant of land “to be used for a road.” The latter grant may be entirely consistent with the conveyance of a fee-simple title, as a road may be maintained as readily on land held in fee as under an easement, but the grant of land as a right of way recognizes nothing but an easement.
*156
Of course, under the construction given this deed by the trial court, with which we are in accord, the finding of plaintiff’s prescriptive right to maintain his water ditch across this strip of land becomes immaterial, but we may say that we think the evidence in support of such finding is ample.
The judgment is affirmed.
Wilbur, J., Lennon, J., Lawlor, J., Shaw, J., Angellotti, C. J., and Olney, J., concurred.