Henrici v. South Feather Land & Water Co.

The plaintiff, owner of a tract of land in Butte County, containing about twenty-acres, brought this action to recover damages for the failure and refusal of the defendant, a water company, to furnish water for the irrigation of his land. The trial was had before the court sitting without a jury, and the court rendered judgment in favor of the plaintiff for $1,176. The defendant appeals from the judgment, bringing up the evidence by means of a typewritten transcript.

The defendant is the successor in interest of South Feather Water and Union Mining Company (hereinafter termed the “old corporation”), which was engaged, among other things, in the business of furnishing and supplying water to the public for hire. On the ninth day of October, 1884, the old corporation, then the owner of the twenty-acre tract above mentioned, made an agreement with the plaintiff for the sale of said land to him, conveyance to be made upon the completion of the deferred payments provided for. Upon the paper containing the contract of sale, and following the signatures of the vendor and vendee, there was appended an additional agreement, executed at the same time by the same parties, and reading, except for the signatures, as follows:

“ADDENDA. The South Feather Water and Union Mining Company hereby agrees to furnish water for irrigation on the lands described in the within agreement at the rate of Ten Cents per inch per day of Twenty Four hours each, whenever water is flowing in its ditch adjacent to said lands, and said John Alfred Henrici or his assigns hereby agree to pay for all water so furnished by said company for said purposes, said sum of Ten Cents per inch per day of Twenty four hours monthly on demand.

“Witness the hands and seals of said parties this ninth day of October, A. D. 1884.”

The plaintiff went into possession under his contract of sale. The main ditch of the old corporation then ran within about one thousand feet of the land so contracted to be sold. A lateral ditch and pipes were constructed to connect the main ditch with the land. The old corporation thereupon commenced to supply water to the plaintiff upon the terms stated in the agreement above quoted. The plaintiff completed his payments on the land, and in October, 1888, received from the old corporation a deed conveying to him the land described, with its appurtenances. The deed made no specific reference to any agreement for the furnishing of water. After the malting of the deed, as before, the old corporation furnished water to plaintiff’s land upon the terms stated in the agreement. The plaintiff had planted his land to fruit trees and vines, and applied for water as he needed it for irrigation, paying ten cents for each inch served for the number of days during which the use continued. In 1909 the old corporation conveyed all of its water system and other property to the defendant, which has ever since been carrying on the business of a public service corporation supplying water to the public for hire. When the defendant came into possession of the system, it undertook to establish a new system of rates, under which it made a flat charge of $36.50 per annum for one inch of water, allowing the user to cumulate the use during any month, e. g., to use five inches for six days in the month, or three inches for ten days, or ten inches for three days, and so on. The effect of the new rule, however, was to require a consumer to pay a minimum of ten cents for every day in the year, whether he used water or not. The plaintiff demanded the right to have water served to him upon the terms on which he had re

The main question is whether the defendant was bound to furnish water at the rates agreed upon between its predecessor and the plaintiff. Underlying this is the preliminary inquiry whether the defendant, in purchasing the water system of the old corporation, took with constructive notice of plaintiff’s rights under his contract. It did not have such notice from the records, since the contract, though copied in a book of the records of Butte County, had not been acknowledged. There was, therefore, no such legal recordation as would impart constructive notice. (Civ. Code, sec. 1213; McMinn v. O'Connor, 27 Cal. 239 , 245; Lee v. Murphy, 119 Cal. 364 , 370, [ 51 Pac. 549 , 955].) But the purchaser of real property is bound to take notice of all easements or servitudes which are “apparent” upon an inspection of the property. (Rubio Cañon L. & W. Assn. v. Everett, 154 Cal. 29 , [ 96 Pac. 811 ].) As between the plaintiff and the old corporation, the right to the flow and use of the water constituted an easement in favor of plaintiff’s land. (Civ. Code, sec. 552; Farmer v. Ukiah W. Co., 56 Cal. 11 ; Franscioni v. Soledad L. & W. Co., 170 Cal. 221 , 224, [ 149 Pac. 161 ]; Southern Pac. Co. v. Spring Valley Water Co., 173 Cal. 291 , [L. R. A. 1917E, 680, 159 Pac. 865 ].) At the time of the defendant’s purchase, the water system was connected by lateral ditches and pipes with the plaintiff’s land. The trial court was warranted in drawing the inference that the physical conditions were such as to indicate to anyone inspecting the system that water had been, and could be, furnished therefrom to such land. Undoubtedly the defendant knew that its grantor had been engaged in the sale or rental of water as a public service, and that those who were receiving water from it had a right to demand continued service on proper terms. The law charged it with notice of all further facts which it might have ascertained by proper inquiry. (Civ. Code, sec. 19; Tynan v. Kerns, 119 Cal. 447 , 451, [ 51 Pac. 693 ].) Knowing, then, that plaintiff’s land had some kind of a right to receive water from the system which it was

If the defendant had notice of the contract of the old corporation, it was bound by the terms of that contract. The ease is governed by the principles laid down in Stanislaus Water Co. v. Bachman, 152 Cal. 716 , [ 15 L. R. A. (N. S.) 359 , 93 Pac. 858 ]. There the court, in speaking of a similar ■situation, said: “The agreement is, in legal effect, an agreement to sell a right or interest in real property. , . . Hence, the agreement to furnish the necessary water from the canal from year to year, during the time specified, and to deliver it upon the . . . lands for the irrigation thereof, for an agreed price, was, in substance and effect, an agreement for the sale of real property of the canal company. Such an agreement, with all its terms, is binding, not only upon the maker, but upon all persons who subsequently acquire the maker’s title to the property agreed to be sold, with notice of the agreement. The plaintiff [water company], as we have seen, bought with notice, and it is therefore as much bound to comply with this part of the agreement according to its terms as if it had executed the same.” This reasoning is equally applicable to the present case. It is true that the contract before us does not provide, as did that considered in the Stanislaus case, that it should have “the force and effect of a covenant running to and with” the land of the consumer and the canal of the Water Company. But, as was held in the case cited, the language quoted was not effective

It is argued that the agreement is too uncertain to be capable of enforcement. But we think there is no merit in this contention. No specific amount of water was mentioned, but the company agreed “to furnish water for irrigation on the lands described in the within agreement.” The fair meaning of this language is that the amount to be supplied was that reasonably necessary for irrigating the lands. This, apparently, was the.interpretation put upon the contract by the parties to it, and they had no difficulty in acting on such interpretation for twenty-five years. In Stanislaus Water Co. v. Bachman, supra, the contract merely bound the company to furnish “a flow of water sufficient to fully irrigate said land as often as necessary during each year.” It was held to be sufficiently certain.

The obligation to furnish water at the agreed rate was unlimited in time, and continued until the rate was superseded by order of a public body vested with the power of regulating the service.

There is no force in the claim that the defendant was excused from the obligation to furnish water because plaintiff had not made a demand for a specific amount, and had not tendered payment in advance at the contract rate. The position of the defendant, plainly and unequivocally declared, was that it would not furnish water except upon the rates prescribed by it. It is perfectly apparent that a demand, however specific as to amount, would have been unavailing so long as plaintiff was not willing to pay the rates demanded. On familiar and well-settled principles the defendant cannot, therefor, avail itself of any indefiniteness in the demand, or of a failure to offer the contract, price. Furthermore, so far as tender is concerned, the contract did not require the plaintiff to pay or offer to pay in advance.

The defendant makes the further contention that the evidence does not support the finding with respect to damage. We think this position is well taken. The land had been without water for four years. The plaintiff introduced testimony to the effect that the lack of water had greatly diminished both the quantity and the value of his crops of fruit and grapes, and had caused many of his trees and vines to die. The damage claimed consisted of the loss on these items, and the finding represented the conclusion of the court with respect thereto. It is manifest, from the record, that the defendant did not at any time refuse absolutely to furnish water. It was always ready to supply plaintiff’s land upon payment of the rates demanded by it. This was perfectly understood by the plaintiff, who was well aware that he could get the water by complying with the defendant’s demands. His right to water was not disputed. The one point of controversy was whether he should pay the rates which he had been paying theretofore, or the rates fixed by the defendant. If the plaintiff had continued to use a quantity of water approximating that received by him in prior years, paying the defendant what it asked, the cost to him would have amounted, in each year, to only a few dollars more than the sum payable under the contract. By paying the excessive price without conceding its correctness, he could have saved his trees, vines, and crops, and reduced his damage to a comparatively trifling sum. This it was plainly his duty to do. “The law imposes upon a party injured by another’s breach of contract or tort the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him.” (1 Sutherland on Damages, 4th ed., sec. 88; Ash v. Soo Sing Lung, ante, p. 356, [ 170 Pac. 843 ]; Cullerton v. Miller, 26 Ont. 36, 45; Dillon v. Anderson, 43 N. Y. 231 , 237.) The principle has been applied by this court in a case similar to the one at bar.

We find no other point requiring discussion.

The judgment is reversed.

Shaw, J., and Richards, J., pro tem., concurred.

Hearing in Bank denied.