66 Cal. 300 | Cal. | 1885
Action to quiet title. The interest claimed by the defendants, by their answer, in the premises regarding which the plaintiff seeks to have its title quieted, is as follows : Defendants own, in severalty, parcels of land by conveyances (through others) from Robidoux (who was the common grantor of plaintiff and defendants), and defendants aver that Robidoux, while owner, dug a ditch, by means of which water was ■conducted across the lands now owned by defendants, for the purpose of irrigating the said lands now owned by defendants, and other lands of Robidoux, and that, when defendants’ grantors purchased from Robidoux, the ditch, and the right to conduct waters from the Santa Ana river over and through the lands of
1. The court sustained an objection to a question put by plaintiff to a witness, as to the amount of water required for irrigation on the defendants’ land. This ruling was error. The only right asserted by defendants in their answer was the right to use a ditch for conveying water across plaintiff’s land to their own land, for the purpose of irrigation, and for domestic use thereon. The plaintiff had the right to show, if he could, that defendants were conveying in the ditch more than was necessary for those purposes. It was also error to refuse to permit plaintiff to prove the carrying capacity of the ditch in 1872. The findings and decree should have specified, either by width of the ditch or by its carrying capacity, the quantity of plaintiff’s land over and upon which the easement existed. In no view, under the pleadings in this case, could the defendants have had more water flow in the ditch than was necessary for domestic use and for irrigation on their own lands.
2. The parties to this action have title to their respective lands under a Mexican grant. The patent was issued December, 1876. This action was commenced within five years thereafter. It has been held by the Supreme Court of the United States (Henshaw v. Bissell, 18 Wall. 255), and by this court
From the view we take of the case, it is not necessary to determine whether the principle applies here. The court found that when Robidoux conveyed to defendants’ grantors the ditch was not in existence, and the right to conduct water over plaintiff’s land was not an appurtenance or easement pertaining to the land now owned by defendants. There is no direct evidence of a grant of right of way since that time by plaintiff or its predecessors in interest; but there is some evidence, which might have been considered by the court, in the direction of determining whether or not the acts and omissions of the plaintiff and its predecessors in interest, taken in connection with the acts of the defendants and their predecessors in interest, would create a presumption of a grant. Upon this subject the findings are silent. The decision of the court below seems to have been based on the theory of the statute of limitations. Without determining whether there is foundation for that theory, sufficient appears to us to order a new trial, in order that the rights of the parties may be fully investigated, and a proper conclusion reached. Judgment and order reversed, and cause remanded for a new trial.
Thornton, J., and Sharpstein, J., concurred.