Garvey Water Co. v. Huntington Land & Improvement Co.

This action was brought by plaintiff to enforce a right to thirty inches of water under a contract made with the predecessors of defendant. Judgment went for plaintiff and this appeal is taken by defendant from the judgment on the judgment-roll.

The facts found were, that on February 29, 1892, J. de Barth Shorb and his wife, owners of the Shorb ranch in Los Angeles County and predecessors in interest of the defendant, entered into a contract with one Richard Garvey, to whose interest plaintiff succeeded, relative to certain waters on the ranch.

The contract, which applies to the heirs and assigns of both parties, is quite lengthy, and its provisions as far as they relate to the present proceedings, were that in consideration of twenty-five thousand dollars, the Shorbs granted to Garvey the right to the full, uninterrupted, and perpetual flow of thirty inches of water, miner’s measurement, under a four-inch pressure (each inch of water to be a flow of one fiftieth of a cubic foot of water per second), said water to be taken entirely from the Shorb ranch, and the right thereto to be the first or prior right to any waters then, or thereafter to be, developed or flowing upon or from said lands, subject only to the right to one inch of water theretofore granted for the cemetery at San Gabriel. It was mutually covenanted and agreed that the Shorbs did not warrant the continued flow of said thirty inches of water from said lands, although they did covenant and agree that water was then there and that they would do no act or deed which would diminish its flow, but, on the other hand, declared that it was their intention to continue developing the flow of water therefrom (and they reserved the privilege of so doing by boring wells, driving tunnels, and such other means as engineering skill shall suggest), it being understood that the right of the party of the second part to have and take the thirty inches of water hereinbefore sold to him was (subject to the flow of one inch sold to the cemetery) the first or prior right to any waters then, or thereafter developed on, flowing upon or from the said lands. It was further covenanted and agreed by the Shorbs that in case the flow of water then or thereafter developed by them upon the lands described should be decreased by any act of providence, or from any unforeseen ar uncontrollable causes or agencies, to such

When this contract was entered into the Shorb ranch consisted of about five hundred acres, and at that time there was some eighty inches of water, miner’s measure, flowing from natural springs and ciénegas, and from artesian wells, on the portion thereof (about one third of the whole) which the contract described, and from which land the thirty inches of water were to be taken. For about eight years after the making of this contract there were on the Shorb ranch five wells located on a slope above the measuring box of plaintiff from which, at different periods during that time, the thirty inches of water called for were supplied. Originally the supply was furnished from two wells, but at the expiration of about a year, these failing to furnish the requisite amount, connections were successively made with the other wells in order to secure it. This water was supplied to the measuring box of plaintiff by gravity flow through tunnels and pipes from eight to twenty-one feet below the surface of the ground connecting with the wells. No pumping was used on the ranch for supplying water at the time said contract was made, nor till some years thereafter was water raised by pumps or pumping for irrigation in said county. A drouth had prevailed in southern

The court found the above facts and entered its decree in harmony with the relief asked by plaintiff. It decreed that the plaintiff was entitled to have said flow of water restored to it from the said Shorb ranch by means of a pump placed in one or more of said wells thereon, in the manner indicated in the report of Gervaise Purcell, and directed that upon the furnishing and supplying of the money required to carry on the work necessary to develop and restore said flow of water from the Shorb ranch as the work progressed, the defendant do and perform such work necessary for such purpose as directed in the report of said Purcell. It was further decreed that at the present time and under present conditions, and until it should become necessary for the plaintiff under the terms of its contract to change the location of the pumping-plant, the plaintiff was entitled to use for its pumping-plant to obtain its thirty inches of water, that certain described portion of the Shorb ranch, upon which at the commencement of the action, and at the time of the decree, there was a house in which was installed the pump and other necessary machinery constituting the pumping-plant, at and surrounding a well mentioned in the report of said Gervaise Purcell heretofore referred to.

The only question on this appeal is relative to the proper construction to be placed on the contract between the Shorbs and Garvey, of February 29, 1902. Does that contract give to plaintiff, as successor in interest of Garvey, the right to obtain the thirty inches of water called for therein, by means of pumping, or is it entitled to take only such waters as naturally flow from the land or may be caused to do so by means of the boring of wells or driving of tunnels?

It is insisted by the appellant that this latter is the construction which should have been given to the contract, and that the trial court erred in construing it as conferring a right to obtain such water by means of pumping.

Under these provisions of the contract it was undoubtedly contemplated by the parties that there might be a decrease in, or even an entire cessation of, the flow of water from which Garvey was at any time receiving his thirty inches; that the sinking of wells or driving of tunnels would be inadequate to supply the quantity to which he was entitled; that neither the laws of gravity nor of nature could be relied upon to do so; and that to meet such a contingency resort would have to be had to a competent engineer who would possibly be able to suggest some other means or method by which the flow might be restored, and which would have to be adopted for that purpose.

It is insisted by appellant that while this may all be true, still that the means which might be resorted to under the familiar rule of ejusdem generis must be of the same character as those referred to specifically in the provisions of the agreement in which the Shorbs reserved to themselves the privilege of developing water on the land “by the boring of wells, driving of tunnels, and such other means as engineering skill may

But we do not think this provision is of special or any significance in determining the right of the plaintiff under the contract. That particular provision had reference to the means which the Shorbs reserved to themselves for the future development of water, which they declared they intended to make. In our judgment the rights of plaintiff are to be measured by the last clause in the agreement which we have heretofore quoted, and which confers on Garvey or his assigns the right to have an engineer of their selection determine what work was necessary to restore the supply of water which the Shorbs were to have done at the former’s expense. This latter clause is quite different from the clause relied on by appellant — is broader in its terms and expressly gives a right to plaintiff which the other clause does not pretend to confer.

Assuming, however, that this provision relied on by counsel for appellant is applicable, and is to be taken into consideration with the other general provisions in determining the means which are to be employed in developing or restoring the flow of water in favor of plaintiff, we are satisfied that pumping is of the same general character to accomplish that purpose as “boring wells or driving tunnels.” It will be observed that in the general clause the Shorbs covenant to perform such Avork towards restoring the water as a competent engineer may direct, and while this work is referred to as development work, there is undoubtedly meant by the use of that term the performance of such work as would in the judgment of an engineer accomplish the restoration.

It is possible, as suggested, that neither of the parties had in mind, when the contract was made, the use of a pumping-plant as a means of restoring the water. They probably assumed at that time that a sufficient supply would be obtained by artesian flow or by tunneling. It is true also that no pumping was being done on the ranch at that time, or, for that matter, in the county of Los Angeles, as a means for obtaining large quantities of water for irrigation or purposes of general •utility. But pumping as a means of lifting water from wells or natural streams flowing from a lower level than the land to be irrigated has existed from remote times. For ages it has

It is not claimed that pumping for irrigation was not known at the time of the making of the contract, but only that the parties could not have had it in contemplation because it was not used on the ranch nor in the vicinity, the lower court finding that the high price of fuel for motive power for that purpose made it prohibitory, and the use of electricity for such motive power was then unknown. But we do not think that the fact that pumps were not actually used on the ranch, or in the county, is of any moment as far as the proper construction to be placed on the agreement is concerned. The grant to Garvey of these 'waters was a perpetual one, — to endure for all time, and he paid a large sum of money as a consideration for it. It was in contemplation of the parties that possibly in the course of years this water supply would so decrease that Garvey could not obtain the amount he purchased by the means which were then being adopted to supply it. In anticipation of being confronted with that situation, they proceeded to provide how it should be met. They assumed it would be a situation which the parties themselves would not be able to cope with, and so provided that some competent engineer should be selected to whom it would be left to determine what means should be adopted to restore the flow of water which has been purchased. When the means actually being used to produce the supply failed, it was provided that a competent engineer, a person who would have knowledge at the time the difficulty arose in obtaining the supply of water, of the most approved and adaptable methods and appliances to increase its flow, should be consulted and his advice followed. There is certainly no reason why the parties could not have so provided. It was a wise provision to insert to secure to Garvey the permanent flow of water which he had-purchased, as long as any practicable means which a competent engineer might suggest could secure it to him. Whatever the

It is claimed, however, that pumping is not the development of water, either in its primary sense or in the sense that the term was used in the contract. Appellant contends that true development work is merely the opening of new channels for the outflow of underground stores of water by the propulsion of the forces of nature, while pumping, on the other hand, is the forcible abstraction of these natural stores by foreign and artificial work, and that the term “development,” as applied to obtaining a water supply, has a well-recognized meaning under the decisions of this court.

But if the driving of tunnels or making of cuts is the development of water, as it must be conceded it is, we perceive no good reason why the installation of a pump or pumping-plant is not equally such development. As said in Charnock v. Higuerra, 111 Cal. 473 , 481, [ 52 Am. St. Rep. 195 , 44 Pac. 171 ], every diversion “of water from a stream is a disturbance of the natural order of things. A dam or a ditch is as much an artificial mechanism as a pump; indeed, it may be^much more so; and the one alters the natural condition in the same sense that the other does.” Whether subterranean wraters are procured by means of driving tunnels or the operation of pumps, they are obtained in either instance by artificial and not by natural means. Tunnels are practically horizontal wells, differing from ordinary wells only in this, that the waters from the former find their way by gravity flow, while in the latter pumping must be resorted to to bring the water to the surface. They both disturb the natural conditions of the flow of the subterranean waters and differ only as to the

Nor do we understand that the decisions referred to by counsel contain any definition of the term “development” as applied to subterranean waters. The cases referred to—for example, Roberts v. Krafts, 141 Cal. 20 , [ 74 Pac. 281 ]; Vineland Irr. Dist. v. Azusa Irr. Co., 126 Cal. 486 , [ 58 Pac. 1057 ]—do not attempt to give any definition of the term. They simply hold that the things which were done in an effort to procure and control the subterranean waters were acts which constituted development. The development effected in those cases was by means of cuts and tunnels, and the court held that these constituted a development of water. The court did not hold that development could only be accomplished by such means, but simply that within the definition of development these means constituted it.

In the case at bar the wells from which plaintiff had been securing its thirty inches of water had so decreased in their flow that water could not be obtained from them by the tunnels which had been driven. As the only method whereby the flow of water could be restored was through the installation of a pumping-plant of the character decided on by the engineer, Gervaise Purcell, we are satisfied that whether the contract is to be construed as providing that a competent engineer shall suggest “development work” alone to be done to restore it, or that he could suggest any effective means to do so, even though it might not come within the definition of development work,, that still the installation of a pumping-plant at the well as devised by him was “development work,” and the development of waters for the purpose of restoring the amount to which plaintiff was entitled, and that this construction placed on the contract by the trial court was correct.

The judgment appealed from is affirmed.

Shaw, J., Sloss, J., Angellotti, J., and Henshaw, J., concurred.