51 Cal. 205 | Cal. | 1876
It is not questioned by the plaintiffs that the defendant, as owner of the upper canal between the South Fork of the
This claim is based upon the assumption that the entire canal, from the grand reservoir to the South Fork, was a continuous aqueduct constructed by the same party—the South Fork Canal Company—and in accordance with one original plan; and that, therefore, the right to the use of the waters of the South Fork appertained to the ditch throughout its entire length, and not to a single section or portion of it.
The defendant acquired his title by purchase at a sale under a decree of foreclosure of a mechanic’s lien for labor upon and materials used in the construction of what is termed the upper canal or section.
The plaintiffs are the successors in interest of the South Fork Canal Company, the original projectors and owners of both the upper and lower sections. In the case of South Fork Canal Company v. Gordon (6 Wall. 561), the validity and extent of the lien of Gordon came in question before the Supreme Court of the United States. In that case it was earnestly claimed by Gordon that the canal, including the upper and lower sections, was an entirety, and that the whole was subject to his lien. It was contended by the canal company, with-equal earnestness, that the lien should be restricted to the branch or division of the canal upon which the work was actually done, and not extended over the entire structure. The court adopted the latter view, holding that the two parts of the canal, the upper and lower sections, being constructed by different contractors and at different times, and being fed, _ in part, from different sources, were, in effect, separate and distinct works, and therefore confined the lien of Gordon to the upper section extending from Long Cañón to the South Fork.
Whatever might have been our opinion upon this ques
We are of opinion that the defendant was entitled to the absolute use of the waters of the South Fork by virtue of his ownership of his canal, and that the court below erred in considering the value of any portion of this water right in estimating the value of the lower canal.
The new trial was properly granted.
Order affirmed.
Mr. Chief Justice Wallace delivered the following concurring opinion:
I concur. The title of Hosmer, the respondent here, to the water flowing, or to flow, in that portion of the canal next to and adjoining the South Fork of the American River, called the “upper section,” originating, as it does, in the lien of Gordon, is necessarily coextensive with that lien. If, therefore, the lien of Gordon attached to the “upper section,” as a distinctive thing, and one wholly disconnected from the “lower section” of the canal, the title derived through the foreclosure of that lien must be a title to the “upper section,” wholly dissevered from the remainder of the general work. That the lien of Gordon was of this distinctive and exclusive character was directly determined by the Supreme Court of the United States in a suit in equity involving the validity and extent of the lien, to which suit the parties here, or their predecessors in interest, were parties. (Canal Company v. Gordon, 6 Wall. 561.) The decree of the Circuit Court of the United States for the Northern District of California, which had proceeded upon the ground of the indivisibility of the entire canal, was reversed for - error in that respect, the Supreme Court holding that the upper and lower sections of the general canal were distinct and independent works, and declaring that “a different principle would produce confusion and lead to serious evils.” In view of this decision, constituting, as it does, the law of*210 the case between the parties here, there is no legal relation between the “upper section” and the “ lower section ” of the canal in controversy; there is no legal duty upon the part of the owner of the “upper section” to permit the waters of the South Fork of the American River to flow into the “ lower section ” of the canal, and consequently, there was error in allowing the value of these waters to be considered in fixing the value of the “lower section.”
Neither Mr. Justice Cbookett nor Mr. Justice Rhodes expressed an opinion.