103 Cal. 670 | Cal. | 1894
This action is somewhat difficult to classify. Its purpose is to obtain an injunction to prevent defendants from preventing plaintiff from attaching a water-pipe to a certain water pipe of defendants. Judgment went for plaintiff, and defendants appeal from the judgment and from an order denying their motion for a new trial.
The decision of the case rests upon the respective rights of the parties under a certain written contract made by appellants on March 24,1891, with one Frederick
We pass over the preliminary points made by appellants; that is, whether the- word “assigns” in the contract was not intended in the limited sense of meaning only the successors of Hill in the land in said lot 9; whether the attempted assignment of a certain alleged “receiver” was valid; and whether, under any view, injunction was the proper remedy. Assuming none of these points to be well taken, we are satisfied that, under the contract, neither Hill nor any of his successors or assigns had a right to cut a hole in appellants’ pipe, attach another pipe to it hermetically, or use the pressure which it afforded. None of these things were covenanted for in the contract upon which respondent bases his right of action.
The contract simply provides that appellants “will deliver to the party of the second' part (Hill), his executors,” etc., the amount of water before mentioned, “near F. E. Patterson’s northwest corner in section 29,” etc. The words of .the contract upon which respondent
It is contended that the attachment of respondent’s pipe to that of appellants would not injure the latter. There is considerable evidence that it would be an injury to appellants; but a man has no right to commit a trespass upon the property of another because in the opinion of the trespasser or of a court it would do the owner of the property no harm. Neither is it of any consequence that after the pipe of appellants had been constructed they furnished water through connecting pipes to a few persons other than respondent. They had the right, of course, to make such a contract with another person if they chose to do so, but they made no such contract with Hill or his assigns.
The foregoing views are determinative of the appeal adversely to respondents; and as they cover the merits of the whole case it is not necessary to notice in detail the various specific points made by appellants. The case was decided in the court below upon the theory that, under the written contract between Hill and the appellants, the latter are compelled to allow the assigns of Hill to permanently attach a pipe to the pipe of appellants; and this, in our opinion, is not a correct construction of said contract.
Judgment and order reversed.
Fitzgerald, J., and De Haven, J., concurred.
Hearing in Bank denied.