Hamilton v. Consolidated Water Co.

This suit involves the ownership to six and one-half inches of water measured under a four-inch pressure, to quiet title to which the action is brought. The water in question is produced from tunnels in section 3, township 1 south, range 8 west, S. B. M., which are on the property of the defendant. The plaintiffs also seek to enjoin the defendant from diminishing or interfering with the de

It appears, without contradiction, that on the twenty-eighth day of January, 1895, Peter Flemming and James Beckett and J. T. Brady were the owners of the tunnel and the pipe-line running between the east one-half of the southwest one-fourth of section 3, and the west one-half of the southeast one-fourth of that section and of the further right to develop water and rights of way for pipe-lines. On that date they executed a deed to M. B. Campbell, conveying to him six inches of water. The following is an excerpt from the deed, which is important in the decision of this ease as description of the property conveyed: “six inches (6) of water to be taken from that body of water now developed on the east one-half (E. y2) of the southwest one-quarter (S. W. 14) of section 3, township 1 south, range 8 west S. B. M., and the west one-half (W. y2) of the southeast one-quarter (S. E. 14) of said section, one-half (%) inch of said above six (6) inches to be of continuous flow for domestic purposes, to be used upon and to be appurtenant to certain lands in said deed described.” On the same date Flemming and Beckett executed an instrument in writing with reference to which the court found as follows: “That on Jan. 28th, 1895, Peter Flemming and James Beckett, being two of the grantors named in said deeds, signed and acknowledged a certain agreement dated Jan. 28, 1895, providing that said Flemming and said Becket and M. B. Campbell were to build at their own joint expense a reservoir for water located upon the lands to which said 6 inches of water are declared to be appurtenant, and agreeing that there was then flowing in a tunnel from xvhieh said 6 inches of water was to be taken, 117 inches of water, and providing that, in case the said 117 inches of flow should decrease in volume,

It further appears that on the first day of June, 1896, Flemming and Becket and Brady executed a deed to Hannah E. Campbell, who was the wife of M. B. Campbell, conveying one-half inch of water from the body of water then developed on the said east one-half (E. y2) of the southeast one-fourth (S. E. ]4) of said section three (3) and the west one-half (W. y2) of the southeast % of said section. This deed contains the following provision: “Said y2 inch of water is to be taken by party of the third part in a continuous flow, and is granted subject to all the benefits running with and subject to all the burdens, limitations, and restrictions attached or imposed upon that certain six inches of water set out and mentioned in that certain contract which is recorded in book 989, page 242 of deeds, Los Angeles county records, the same as if 6y2 inches of water had been sold at that time by the parties of the second part and had been set out in said contract.” This deed was duly recorded. The contract to which reference is therein made is the one executed by Flemming and Becket only, and which we will designate as the “contract” to

In addition to claiming title by virtue of the deeds, the plaintiffs also assert a right by prescription. The court’s finding was favorable to the plaintiffs in this regard. Appellant insists that this finding was not supported by the evidence. As to whether or not plaintiffs had actually received six and one-half inches of water measured under a four-inch pressure without diminution during all of the period of fifteen years, there was some conflict in the testimony. In so far as that element is concerned, the finding of the trial court will, therefore, not be disturbed. But appellant points out that the evidence fails to show that there was any occasion upon which the defendant was called upon to deny the existence of the plaintiff’s alleged right or when the defendant was injured by allowing the plaintiff to use the entire six and one-half inches of water.

[1] But the entire claim of title by prescription will be disregarded, for we think the decision must be upheld because the plaintiff’s ownership of six and one-half inches of water was clearly established by the proof of the execution, delivery, and recording of the deeds to M. B. Campbell and Hannah E. Campbell. The legal effect of the first of those deeds was to transfer to Campbell an absolute right to the six inches of water measured under a four-inch pressure. This right was not impaired by the execution of the “contract” on the same date, to which Campbell was not a party, which purported to qualify his interest in the property in question.

[2] The appellant asserts that although M. B. Campbell did not sign the “contract,” nevertheless he was bound thereby because of the following facts: First, he stated to the witness Lindsay, one of his employees, that when the water went below 117 inches, he was to stand his portion of the loss. Lindsay testified that “Campbell said this to him on several occasions after the deeds and instrument in writing were executed”; second, Campbell accepted title to the one-half inch of water previously conveyed under the deed to Hannah E. Campbell, which expressly referred to the writing of January 28, 1895. It is not claimed that the plaintiffs, or any of them, had actual knowledge of the conversation

With reference to the one-half inch of water conveyed to Hannah. B. Campbell, the court found, and in its judgment determined, that the plaintiffs own it subject to the right of diminution as asserted by the defendant. In this, its decision was also correct, for this deed especially refers to the “contract,” and, therefore, incorporates it in the deed itself. The two instruments are to be construed as one.

The cases cited by appellant are all distinguishable from the one at bar. Some of them hold that oral statements of the owner of real property may be introduced to prove a boundary line. Such statements do not vary the terms of the written instruments purporting to convey the real property involved. They are competent to identify the land transferred; to apply the description in the deed to the thing designated as alienated. The following are of this class: Austin v. Andrews, 71 Cal. 98 [ 16 Pac. 546 ]; Sharp v. Blankenship, 79 Cal. 411 [ 21 Pac. 842 ]; People v. Blake, 60 Cal. 497 . Another group holds that statements which are a part of the res gestae of the transaction are admissible. (Draper v. Douglass, 23 Cal. 347 .) Others announce the law to be that where the instrument is uncertain, declarations of the parties to it made under certain circumstances should be received in evidence to explain the ambiguity and thus aid in giving effect to the true intent of the parties. Among these cases are: Draper v. Douglass, supra; Stanley v. Green, 12 Cal. 148 ; Williams v. Harter, 121 Cal. 52 [ 53 Pac. 405 ]. Still other cases relied upon by appellant announce the principle in variously worded phrases as declared in section 1849 of the Code of Civil Procedure, which reads: “Where, however, one derives title to real property from another, the declaration, act, or omission of the latter, while holding the title, in relation to the property, is evi

As to the six inches of water in dispute, plaintiffs established their case by proof of the execution of the ideed conveying it to Campbell. The defendant introduced no evidence which showed a reconveyance of this property or any part of it. The burden was upon it to do so; having failed, the trial court properly gave judgment for the plaintiff.

Appellant does not object to the court’s decision concerning the one-half inch of water litigated.

The judgment is affirmed.

Finlayson, P. J., and Works, J., concurred.