93 P. 858 | Cal. | 1908
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *718 The plaintiff sued the defendant to recover nine hundred and twenty dollars alleged to be due for water sold and delivered by the plaintiff to the defendant for the irrigation of four hundred acres of land, or at the rate of $2.30 per acre. The defendant admitted the receipt and use of the water on the land, and offered to allow judgment in favor of plaintiff for six hundred dollars, or at the rate of $1.50 per acre. The case depends on the question whether or not the plaintiff can charge more than $1.50 per acre per year for water for irrigation purposes. The court below held for the defendant, and gave judgment for plaintiff for six hundred dollars, without costs.
The claims of the defendant are founded upon an agreement between one Threlfall, his predecessor in the ownership of the four hundred acres of land, and a corporation known as the Stanislaus and San Joaquin Water Company, the predecessor of the plaintiff in the ownership of the water and water system in question. The said Stanislaus and San Joaquin Water Company was the owner of water-rights in the Stanislaus River and a canal whereby the water was conducted through Stanislaus County, and it was engaged in the business of distributing and selling the water to farmers for irrigation purposes. Threlfall was the owner of a large tract *719 of land. The following is a statement of the parts of the agreement that are material to the case: —
The company agreed to "furnish through its canal from the Stanislaus River," to Threlfall, "his heirs or assigns, during each and every year, for the term hereinafter mentioned, for the purpose of irrigating a tract of four hundred and sixty-one acres of land, . . . a flow of water sufficient to fully irrigate said land as often as necessary during each year of said term." The land described consisted of ten quarter sections, comprising about sixteen hundred acres, and the four hundred and sixty-one acres was described as all those portions of the larger tract "lying north of Little Johns Creek and south of Myrtle Creek."
The water was to be used for irrigating purposes only on said land, and was to be delivered by the company on the land in such manner as to make it available for use thereon. "The headgates, weirs and other arrangements or devices through which the water shall be drawn from said canal" were to be made and placed in position by the company at its own expense, and it was to fix and control the manner of supplying the water.
Threlfall agreed to pay the company "the sum of ten dollars per acre for each and every acre of said land" to which the company agreed to furnish water, with interest on such sum at six per cent per annum, "principal and interest apportioned and commuted as follows: On the first day of November after the delivery of water under the contract . . . the sum of eighty cents for each and every acre of said land, and on the first day of November thereafter for the period of twenty years thereafter, a like sum, making in all twenty payments on each and every acre of said land aforesaid, which shall be in full payment of the amount provided to be paid herein," or Threlfall had the right at any time to "make a cash settlement in whole or in part of the amount unpaid, by paying the principal sum still unpaid and the interest accrued" to the time of settlement.
Threlfall also agreed to pay, in addition to the above sums, the sum of $1.50 per acre per year upon each acre of the land, "as a water rental therefor," to be paid on November 1st of each year perpetually. *720
The ninth clause of the agreement contained the following: "The said parties agree to and with each other that this contract shall have the force and effect of a covenant running to and with the said land of the party of the second part (Threlfall) and the canal of the party of the first part" (the company).
The contract was executed on the eighteenth day of June, 1896. The land to be irrigated was situated some eight or ten miles from the canal mentioned in the agreement, or from the point thereon at which the water was to be diverted therefrom. Under a subsequent contract with the company, Threlfall constructed for the company a lateral ditch leading from the point of diversion in the canal to his lands, and the company accepted this work as full payment of the ten dollars per acre agreed to be paid by Threlfall on the four hundred acres of land for which it subsequently supplied water. This arrangement appears to have been understood as a release of both parties from the operation of the contract and the obligations thereof, with respect to the remaining sixty-one acres mentioned in the agreement. The company took possession of the lateral ditch and thereafter used it to convey water from its main canal to the lands of Threlfall and other lands in the vicinity.
The Stanislaus and San Joaquin Water Company had executed a mortgage on July 26, 1895, upon all of its property, including the said main canal, and all lateral ditches and appurtenances of every character connected therewith. This was prior to the contract with Threlfall and before the construction of the lateral ditch leading to his land. This mortgage was foreclosed, and on December 17, 1898, the mortgaged property, including said lateral ditch, was sold at the foreclosure sale to J. Dalzell Brown, and the deed thereunder was afterward executed to the plaintiff, as his successor. Neither Threlfall, nor Bachman, the defendant, were parties to the foreclosure suit.
In 1893 and 1894 Threlfall executed certain mortgages on his land, which were foreclosed in 1898, and Bachman obtained title to said land by deed under the foreclosure decree. Neither the Stanislaus and San Joaquin Water Company, nor the Stanislaus Water Company, were parties to that action of foreclosure. *721
During the year 1900 Bachman was the owner of the four hundred acres of land and the plaintiff was the owner of the canal and water system. It regularly supplied water to Bachman for the irrigation of the four hundred acres of land during that year. The court finds that the reasonable value of the water so supplied, independent of the terms of the contract, was $2.30 per acre, or nine hundred and twenty dollars for the land supplied. This, it may be observed, was substantially the same as the value fixed in the contract, being equal to the $1.50 annual rental and the eighty cents for the annual payment agreed on. The foregoing are the principal facts upon which the rights of the parties depend.
1. The water-right agreement between the Stanislaus and San Joaquin Water Company and Threlfall was on June 26, 1896, recorded by the recorder of Stanislaus County in a book kept by him in the recorder's office and designated as volume 6 of Miscellaneous Records. This is one of seven books of the same designation, which are kept in the said office. Ever since the year 1854 it has been the custom in said county to record in these books, so designated, instruments filed for records of the classes known as agreements, mining locations, bills of sale, water-rights, water contracts, certified copies of decrees confirming sale, articles of co-partnership, assignments for benefit of creditors, assignments of sheriff's certificates of sale, bonds for deeds and agreements for sale of real estate, and it does not appear that in that county any instrument of either of these classes has ever been recorded elsewhere than in said Miscellaneous Records.
The substance of the agreement has been, in part, stated. There were other clauses further showing its complex character. The fifth provided that Threlfall might use water on only one fourth of the land the first year, one half the second year, three fourths the third year, and thereafter on all the land, paying rent only on the part used. By the seventh clause Threlfall granted to the company a permanent right of way over any land he owned, for the canal of the company, and Threlfall was granted the right to use water from such canal for domestic purposes and to water stock, and to plant trees by the canal. The eighth provided that if, from causes not within its control, the company was unable to furnish the water, it should not be liable for the failure *722 and Threlfall should pay rent only for what water he received. Neither party was to be liable until delivery of water began or was tendered.
It is claimed by the plaintiff that in legal effect this contract was a grant of real property, that is, of a right to demand and receive water for the irrigation of land, and that it should have been recorded in the book of deeds, instead of in the miscellaneous records, and that under the rule announced in Cady
v. Purser,
Section 124 of the County Government Act (Stats. 1897, p. 484), as it stood at the time this agreement was recorded, provided that the recorder must "record separately, in large and well-bound separate books, in a fair hand: 1. Deeds, grants, transfers and mortgages of real estate, releases of mortgages, powers of attorney to convey real estate, and leases which have been acknowledged and approved. 2. Mortgages of personal property." Then follow ten additional designated classes of instruments, the section closing with class "12. Such other writings as are required or permitted by law to be recorded."
The instrument in question does not come within either of the classes designated as "deeds, grants and transfers of real estate." No lawyer would call it a deed or a grant. No part of it is in the form usually adopted for such instruments. With respect to the rights secured to Threlfall under the agreement, it would not, in the ordinary use of language, be called a transfer of real estate. It is an executory agreement to sell and deliver, or, to use its words, "to furnish" *723 water to Threlfall from year to year for the irrigation of his land. Such an agreement confers a right to receive water upon the terms agreed on, and this is no doubt a right in real property, as will hereinafter appear, but it does not necessarily follow that the instrument by which it is conferred constitutes a present grant or transfer. Any agreement to sell or convey real estate gives the vendee a right which is an interest in real property, but such instruments are not grants or transfers, and no one would expect to find them recorded in a book set apart for deeds, grants, and transfers. It is a matter of common knowledge that such instruments are usually recorded in a book designated as a Miscellaneous Record. The evidence shows that it has been the custom in Stanislaus County, ever since its organization in 1854, to record water contracts and other agreements of like character to that in question here, in the books of Miscellaneous Records. We think it has always been the custom throughout the state to so record them. It must be admitted that a document so composite in its elements is better described as an instrument of miscellaneous character than as a grant or transfer of real estate, and that one would naturally look for it in the Miscellaneous Records. We think that record was the proper one in which to record it. We do not mean to imply by this, that the record of such an instrument might not be effective for some purposes, if made in some other book. Courts should not be technical in such a matter where the instrument in question is so complex and difficult to classify as the one in question. The rights of parties under the Recording Act should not depend on the ability to properly determine the character of such an instrument.
The mortgage of the water system of the Stanislaus and San Joaquin Water Company, by foreclosure whereof the plaintiff obtained title thereto, is not set forth in the record, and hence we cannot determine whether or not it was contemplated that that company, as a going concern, was thereby authorized to make contracts, such as that with Threlfall, whereby it might obtain funds to pay the principal and interest of the mortgage, and by which the mortgagee would be bound. But if that mortgage was paramount to Threlfall's rights, it could not be enforced against him without a foreclosure to which he was a party, if suit was begun, as is *724 conceded here, after his contract was recorded. He was not made a party thereto and the consequence is that the plaintiff holds the canal system and the waters thereof subject to the rights of Threlfall and his successors in interest, at least until those rights have been terminated by foreclosure proceedings to which he, or they, are parties.
2. The rights of Bachman under the agreement are the same as those of Threlfall.
It is immaterial that the mortgages of Threlfall's land, under which Bachman acquired title, were executed before Threlfall obtained the water-right. The water-right, when acquired, became an easement appurtenant to the land (Farmer v. Ukiah Water Co.,
This principle probably applies also to the right of the Stanislaus Water Company to the lateral ditch built for the Stanislaus and San Joaquin Water Company from the main canal to Threlfall's land. It was used in connection with the canal for its benefit, and it was, therefore, an appurtenance to the canal. Although not in existence at the time the canal and water system were mortgaged, it became a part of the system as soon as it was constructed. It is not necessary to this case to determine whether or not it passed to the plaintiff by the foreclosure sale under the prior mortgage. The two interested parties appear to have assumed that it did. It was expressly included in the foreclosure sale and in the deed to the plaintiff, and the plaintiff took possession of it accordingly and used it to carry to the plaintiff's land the water for the rental of which it here claims compensation. Under these circumstances it is immaterial, in this action, how it acquired title to the lateral.
3. We have assumed that the right conferred on Threlfall by the agreement with the Canal Company was real property. This is controverted by plaintiff and its argument is, for the most part, founded on the assumption that it was either personalty, or that the agreement constituted nothing more than a personal covenant of that company which does not bind the plaintiff, as its successor. We think neither of these propositions is correct.
That water in its natural situation upon the surface of the earth, whether as a flowing stream, as a lake or pond, or as percolations in the soil, is real property, will not be disputed. That it may become personalty by being severed from the land and confined in portable receptacles is also evident. There is a remark in the opinion of Field, J., in Heyneman v. Blake,
4. We think it is also clear that the effect of the agreement was to confer upon Threlfall a right to such portion of the water flowing from the Stanislaus River through the canal of the company as should be required for the full irrigation of the land, and to have the canal and ditch used for the purpose of conducting the same to the land, and that it is more than a mere personal covenant on the part of the company.
The agreement declares in effect that the obligations thereby imposed on the company shall have the force and effect of a covenant running with its canal. Covenants running with real property bind the assigns of the covenantor in the same manner as if they had personally entered into them. (Civ. Code, sec.
The agreement is sufficiently certain in all its particulars. The water to be furnished and sold was identified by describing it as water from the Stanislaus River to be carried through the canal of the company. It was shown by the evidence that the company had but one canal leading from that river. The lateral was not described except by the *729
statement that the company was to deliver the water on the land by means of such headgates, weirs, and devices as it should construct for that purpose. This left the company at liberty to choose the location and size of the ditch, provided it was so located and was of sufficient size to comply with the terms of the agreement. The uncertainty in this respect did not render the agreement invalid. It was made certain when the ditch was constructed. (Winslow v. Vallejo,
5. The appellant suggests that under the provisions of article XIV of the constitution, adopted in 1879, the use of water appropriated for sale, rental, or distribution is a public use, the regulation and control of which, including the right to collect compensation for such use, is vested in the state, and that, by reason of these provisions, the making of a contract whereby one citizen is given the exclusive right to a part of such water, or by which it is set apart to a particular tract of land, at a rate fixed in the agreement, would destroy the control of the state and convert the public use into private property.
If the water-right of the Stanislaus and San Joaquin Water Company was in private ownership and use at the time the constitution of 1879 was adopted, we do not see how it could become dedicated to public use by the adoption of the constitution, or at all, except by consent, express or implied, of its owners. The record does not show whether it was acquired before or after that date.
But if it is conceded that the water-right has become subject to public use in the sense in which that term is used in the constitution, we do not think that any violation of the constitution appears. The constitutional provision was not intended to prevent a landowner from acquiring and attaching to his land a right to the permanent use of water for its irrigation. If the right to the use of water for that purpose cannot be made permanent, *730
but is subject to change or termination at the hands of the public authorities under the guise of regulation and control, then such use would be of little value. Water for irrigation is not ordinarily used for annual crops for which the place of use can be changed from year to year, perhaps without serious injury, but for trees, vines, and alfalfa, which must be given water each year for a series of years, to be successfully grown at all. To make land valuable for such use, it must have the right to a permanent and continuous use of water. The constitutional provision was not intended to prevent this. The purpose was to foster and encourage such industries, rather than to hamper and obstruct them by destructive limitations upon the right of acquiring private property. Permanent rights to the use of water for irrigation may still be obtained by contract, notwithstanding the provisions of the constitution, subject only to the condition that the state may, if it chooses to do so, regulate and control the use. This question was fully considered and decided in FresnoC. I. Co. v. Park,
There are no other questions demanding notice.
The judgment is affirmed.
Angelotti, J., Lorigan, J., McFarland, J., and Henshaw, J., concurred. *731