Pendola v. Ramm

Suit to quiet the plaintiff’s title to the land described in the complaint, and an irrigating canal and water right alleged to be appurtenant thereto. The appeal is from an order denying the defendants’ motion for new trial.

The court finds that the plaintiff is, and that for more than twenty years he and his predecessors have been, the owners of the land described in the complaint, and also of the canal and water right, which, it is found, are, and during the period mentioned have been, appurtenant to the land. There is no dispute as to plaintiff’s title to the land, but it is claimed by the defendants that the finding of the court as to the canal and water right is not justified by the evidence; and whether this or the contrary is the ease is the principal question to be determined.

The plaintiff deraigns title from John Ramm, Sr., who, at the time of his death, in the year 1888, was, and from the year 1870 had been, the owner of the land and of the canal and water right in question; and who was also, when he died, and for many years prior thereto had been, in the occupation of two tracts of public land, the one adjoining the land now owned by plaintiff, on the west, and known as the “Ritchie” or “Bridger Creek” tract, the other lying to the south of it, and lmown as the “Garden Valley” tract, both tracts being fenced, the former in the same general inclosure as the land now of the plaintiff, the latter separately. On the death of Ramm, his widow, the defendant Joanna, succeeded to the ownership of the land now of the plaintiff, and of the canal and water right in question, and on April 1, 1895, mortgaged this land, “together with, all and singular, the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining,” to the plaintiff, to whom the title to the mortgaged premises passed by commissioner’s deed under foreclosure, September 4, 1900. She also succeeded, apparently to the interest of her husband in the Ritchie and Garden Valley tracts, which she afterwards, July 24, 1899, conveyed to the other defendants, her children; and in the meanwhile these lands continued in her occupation, or in that of herself and her co-heirs.

The last proposition is controverted by the plaintiff’s counsel, as is also the fact that the lands mentioned were fenced during the lifetime of Ramm, Sr., or afterwards. But the testimony of the defendants’ witnesses on these points is full and explicit; and our attention has not been called to, nor have we been able to find, any evidence contradicting it. It is also objected that it appears from the evidence that at the date of the mortgage Mrs. Ramm had no title, nor had she or her husband ever had title, to the Ritchie or to the Garden Grove tract. But the objection is tenable neither in fact nor in law. As against all but the owner, her occupancy and that of her predecessor was sufficient title. (Civ. Code, sec. 1006.) Nor, were it otherwise, would her want of title be material except as a circumstance bearing on the question of intent in the execution of the mortgage, which is the sole question involved. These propositions are not affected by the fact-appearing in evidence, that the lands were subsequently patented to Ritchie and Watson, respectively, and by them conveyed to Mrs. Ramm.

The case, then, is simply that of the owner of a water right who mortgages land on which the water has in part been habitually used. It comes, therefore, within the application of the provisions of section 1104 of the Civil Code, which, so far as material, reads: “A transfer of real property . . . creates in favor thereof an easement to use other real prop

The objections to the specifications of insufficiency of evidence are untenable. There was in the case, practically, but a single issue of fact, which was as to the habitual use of the water on the land now of plaintiff and on other lands of the mortgagor; and to this the attention of the plaintiff was directed by the specifications in various ways; nor does it seem any evidence on this question was omitted. The case, in this respect, comes clearly within the rule laid down in the American Type Co. v. Packer, 130 Cal. 461 , and in later cases. (Standard Quicksilver Co. v. Habishaw, 132 Cal. 124 ; Bledsoe v. Decrow, 132 Cal. 312 .)

We advise that the order denying the defendants’ motion for new trial be reversed and the cause remanded for new trial.

Haynes, C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the order denying the defendant’s motion for new trial is reversed and the cause remanded for new trial.

Angellotti, J., Shaw, J., Van Dyke, J.