Duckworth v. Watsonville Water & Light Co.

This is the third appeal in this cause. Upon the first appeal the judgment below in favor of the plaintiff was reversed. (Duckworth, v. Watsonville etc. Co., 150 Cal.

The facts of the case are given in detail in the previous opinions. A brief statement will be sufficient to present the points arising upon the present appeal.

Both plaintiff and defendant claim rights to the waters of Pinto Lake. The plaintiff claims under an alleged appropriation made in 1903, and a beneficial use of the water diverted in pursuance thereof. The defendant claims the right to take water to the extent of forty miner’s inches, under an appropriation and beneficial use for many years prior to the plaintiff’s claim. It also claims as an owner of land bordering on the lake around the greater part of its shores, and particularly as successor to the grantees of Carmen Amesti de McKinlay, under deeds conveying the water-rights and privileges pertaining and belonging to the land now claimed by Duckworth. The plaintiff has succeeded to the estate and interest of Carmen Amesti de McKinlay, subject to the rights of the defendant under said deeds.

The judgment which is the subjéct of the present appeal declares: 1. That the defendant is the owner of the “riparian rights in said Pinto Lake” attached to that part of the land described in the McKinlay deeds which is riparian to the lake; 2. That the defendant is a senior appropriator of the water of the lake, to the extent of forty miner’s inches, which right takes precedence of the rights adjudged to Duckworth; 3. That the defendant owns a narrow strip of land partly surrounding Pinto Lake, and riparian thereto, and that its rights as such riparian owner be quieted and confirmed; 4. That defendant also owns five and a half acres of land “riparian to the outlet of Pinto Lake,” which riparian rights are also quieted and confirmed; and, 5. That plaintiff has the right, as a junior appropriator, to divert one hundred and forty-two miner’s inches of the waters of said lake, subject to the rights of the defendant stated in the first four declarations aforesaid.

Upon the first appeal the court held, with respect to this claim, that “by reason of its purchase of these riparian rights the company possessed the right, so far as that land and its owners were concerned, to use the whole or any part of the waters of the lake” except such as was necessary for domestic use and stock thereon. ( 150 Cal. 527 , [ 89 Pac. 338 ] .) The decision (p. 531) also established the proposition that the appropriation of Duckworth did not deprive the defendant of any rights to the waters of the lake which it possessed at the time of such appropriation; that neither an appropriation under the Civil Code, nor a hostile diversion without compliance with the code, would have any effect upon the rights of other persons existing at the time such appropriation or diversion began, or operate to gain any right for such appropriator or diverter; that Duckworth could not acquire any right to use any of the water of the lake on any part of the McKinlay land, against the defendant’s rights under the McKinlay deeds, except by contract with the defendants, or by an open, continuous, uninterrupted, adverse use for five years before the action was begun. Upon the first appeal there was no finding that any part of the McKinlay land lay outside of the watershed of Pinto Lake and its tributaries, or that any part of it was not riparian to the lake. It was there assumed to be all riparian thereto. Consequently, the only rights referred to in that opinion as rights conveyed by

Upon the second trial the court made a finding that the water theretofore diverted by Duckworth, under his appropriation, had been applied by him to the irrigation of a portion of the McKinlay land, “but that said portion so irrigated is all nonriparian to Pinto Lake.” Upon this finding the plaintiff sought to evade the effect of the first decision. It was argued that the deeds conveyed only the riparian rights pertaining to the land and did not divest Mrs. McKinlay or her successor, as owner of the land, of the right to take water from the lake and use it upon the nonriparian portion of the land. The court thereupon, on the second appeal, again considered the effect of the McKinlay deeds, especially with respect to the question whether or not they worked an estoppel against rights other than riparian rights. The court there said ( 158 Cal. 213 , [ 110 Pac. 930 ]) : “The instrument conveys not only riparian rights, but all water and water-rights and privileges of every kind, character and description which belong, or in any manner pertain to said land. The right, or one of the rights, now asserted by Duckworth is to apply the waters to the irrigation of the same land. This is a right which has been transferred by his predecessor in interest to the defendant, and he is, by virtue of her deed, estopped from asserting it in antagonism to her grantees.” . . . “If Duckworth, in applying waters for the benefit of his lands were to be given priority over the use of the same waters by the Watsonville Water and Light Company, his appropriation would have the effect of taking away from said company a part of the very right which had been transferred by plaintiff’s predecessor. . . . That grant'was . . . effective as an estoppel on the grantor and her successors, preventing them from objecting to any use by the water company of water which might, in the absence of the deed, have been applied for the benefit of the McKinlay land.” And thereupon the court declared that Duckworth could not take water from the lake to be used on any part of said land. ( 158 Cal. 214 , [ 110 Pac. 927 ].)

Counsel for plaintiff now claim that the last decision did not cover the exact point presented by the language of the deeds. Their argument is that the deeds purport to convey

It is apparent, upon a consideration of the circumstances attending the execution of these deeds, that this construction of the deeds would completely frustrate the object sought to be attained thereby and defeat the chief inducement which led the grantees to take them. The deeds show that the grantees proposed to construct conduits whereby to divert water from the lake. It appears from the evidence that they desired to engage in the business of diverting this water and supplying it to the inhabitants of Watsonville and vicinity, as for a public use. They immediately proceeded to construct the diverting works and establish the proposed water system and they and their successors have ever since continued to take water from the lake and devote it to the purpose above stated. The deeds were obtained in order to prevent any interference with the enterprises by a hostile use of the water on the McKinlay land. It appears, further, that only some twenty acres of the McKinlay land lies on the slope toward the lake and its tributary, and that this part is steep and irrigation thereof is impracticable, while three hundred acres thereof is on a slope from which water will not run into the lake and is suitable for cultivation and irrigation. Duckworth pumps the water of the lake over the intervening ridge and uses it to irrigate a part of this three hundred acres. For the purposes of this case it may be conceded that this part of the land is not riparian to the lake and that the use of the water of the lake to irrigate that portion of the land would not be an exercise of riparian rights in the lake. It is manifest that no use that could be made of

The argument on this point is partly, if not entirely, based on the theory that an appropriation of water, under the code, constitutes a grant by the state of a right to take the water appropriated, a grant which confers upon the appropriator a title or right to the water superior to private rights, riparian or otherwise, existing at the time of the appropriation. This theory seems to persist in the minds of members of the bar. It finds no support in the decisions of this court. It has long been settled in this state that an appropriation under the code divests no existing private right, that its effect is merely to give a preference over a subsequent appropriator or diverter who takes under no other right or title, and to fix the date of the posting of the notice as the inception of the claim under it. (De Necochea v. Curtis, 80 Cal. 402 , 405, [ 20 Pac. 563 , 22 Pac. 198 ]; Wells v. Mantes, 99 Cal. 584 , [ 34 Pac. 324 ]; Alta Land Co. v. Hancock, 85 Cal. 223 , [ 20 Am. St. Rep. 217 , 24 Pac. 645 ] ; Cave v. Tyler, 133 Cal. 566 , [ 65 Pac. 1089 ] ; Santa Cruz v. Enright, 95 Cal. 113 , [ 30 Pac. 197 ]; Frederick v. Dickey, 91 Cal. 358 , [ 27 Pac. 742 ]; Coonradt v. Hill, 79 Cal. 593 , [ 21 Pac. 1099 ]; Watterson v. Saldunbehere, 101 Cal.

These decisions show that while an appropriation or diversion made upon lands of the United States gives the appropriate or diverter a right to the water as against the United States it does so' solely because, by the act of Congress of July 16, 1866 (14 U. S. Stats. 253), the United States declared that such diversion, if recognized by local laws, should be effectual to confer upon the diverter the riparian rights in the stream pertaining to the land of the United States abutting thereon, that it gives no right as against other landowners, that this does not take place upon the theory that the water is held by the United States for public use, but because, as proprietor of the land, the United States by that act, granted a part of its property in its land to such diverter. Also they show that the appropriate under the code may obtain a similar right as against riparian rights of the state pertaining to any lands which the state may own along the course of the stream, but that this right may be thus acquired, solely because the state in section 1410 of the Civil Code has so declared, and that this declaration binds the state as to its proprietary lands but does not affect lands of other persons, or water-rights pertaining to such other lands, and that,\ except its riparian rights pertaining to lands which it owns bordering upon non-navigable streams, the state has no right to the waters thereof and, consequently, cannot dispose of any other rights. The lands bordering on Pinto Lake and its tributaries were all in private ownership at the time of Duckwprth’s appropriation. Hence, he did not thereby acquire any water-right whatever.

It is obvious that on the last trial the court misunderstood the previous decisions of this court establishing the rights of the parties under the McKinlay deeds. The part'of the judgment declaring that Duckworth has the right, over the objections of the defendant, to take one hundred and forty-two miner’s inches of water from the lake and apply it to the McKinlay lands nonriparian to the lake, and enjoining defendant from interfering therewith, is directly in the teeth' of the decision on the previous appeal. The declaration in the judgment appealed from that this right of Duckworth is subject to the rights of the defendant as also declared by the

There is a finding that “there is a large body of water percolating through a strata of land situate in the bottom of one of the ravines and into said lake at a point where the plaintiff herein diverts water from said lake.” It is also found that this body of percolating water “does not originate” on the MeKinlay land, nor on the land of the defendant, but on land belonging to parties not concerned in this action. These findings were not in the record of either of the former appeals. It is suggested by the respondent that because of these additional facts the doctrine of the law of the case does not apply. True it is, the doctrine of the law of the case does not apply where the facts appearing upon a new trial are materially different from those on which the decision constituting the law of the case was based. We are, however, satisfied with the law as declared in the former opinions and we think the additional facts do not change the rights of the parties in any degree. The MeKinlay deeds do not specifically mention Pinto Lake. They convey all water-rights and privileges belonging to or pertaining to the lands. This would include water percolating therein, regardless of the source from which it came, or of whether it had yet entered the lake, as well as water which had already reached the lake.

There is another new finding to the effect that the consideration of the McKinlay deeds had failed. The deeds are substantially alike in terms. The later one in time, dated June 27, 1885, is signed by the grantees, as well as the grantor. The grantees therein covenant that the grantor “may at all times when water shall be flowing in the said pipe or flume” of the grantees, “adjacent or contiguous” to said land, take and have water therefrom sufficient for all domestic purposes and watering of stock on the premises, and that for that purpose the grantees “will tap their said pipe or flume at such point” as the grantor should desire, to allow her to connect a three-quarter-inch pipe therewith, through which to take water for said uses. The finding states that the flume or pipe mentioned in this covenant was never constructed by the grantees or their successor, the defendant herein. This constitutes the supposed failure of consideration and upon this fact the plaintiff’s counsel invoke the doctrine of equity that specific performance will not be allowed where the consideration is inadequate and the contract is unfair, and that he who seeks equity must do equity. There are several answers to this suggestion. First, the deeds do not contain a covenant that the grantees shall construct a pipe or flume over or adjacent to the land described therein; in effect, it merely provides that if they should do so, the grantor should have the privilege of connecting her pipe therewith to obtain water therefrom for domestic use and watering of stock. The failure to construct the pipe or flume on the land was not a breach of any covenant and did not constitute a failure of consideration. Second, the deeds were executed conveyances. The doctrines of specific performance do not apply, the case of the defendant not being for specific performance, but for the protection of a vested right. A failure of consideration, or a breach of a covenant, not amounting to a condition, does not avoid an executed conveyance of property rights such as we have here. Third, there is no finding that Mrs. McKinlay, or her successors, have ever requested the construction of such pipe or flume on the

There is no occasion for another trial of the case. The parties have had ample opportunity, at the three trials already had, to produce all the evidence they have and to prove all the facts bearing upon their respective rights. Indeed the last trial consisted, in large part, of the reading of testimony given upon the previous trials. The new evidence given and the new facts found by the court do not, as we have seen, change the legal rights of the parties. The facts which determine their rights are fully stated in the findings. The ends of justice require that the litigation should be ended and that the proper judgment be entered on the findings made.

The judgment is reversed and the cause is remanded with directions to the court below to enter a judgment declaring that, except for domestic use and watering of stock, the plaintiff has no right to take water from Pinto Lake, either directly therefrom, or indirectly by a diversion from its tributaries or from water entering it by percolation or otherwise, to be used on the land described in the complaint, or on any part thereof, whether riparian to Pinto Lake or its tributaries or not, and perpetually enjoining him from doing so, and in favor of the defendant adjudging its right as herein indicated and for its costs.

Sloss, J., Melvin, J., Lorigan, J., Henshaw, J., Lawlor, J., and Angellotti, C. J., concurred.