Irrigated Valleys Land Co. v. Altman

The plaintiff instituted this action for the purpose of securing a decree perpetually enjoining and restraining the defendants from using a certain ditch, known as the “Hungry Hollow Ditch” and the right of way over

The amended complaint sets out in detail the acts of the defendants constituting the alleged wrongful diversion of the water from said ditch. The answer to said complaint denies specifically the averments thereof and also sets up a number of special defenses which may be stated in substance as follows: 1. That plaintiff is estopped from denying that defendants have the right to the use of said ditch and right of way because of the representation by plaintiff to the predecessor in interest of defendants, one William Chaney, prior to the purchase of said tract by said Chaney, that the right to the use of said ditch and right of way would become, upon said purchase by said Chaney, appurtenant to said tract and that he could enjoy said use without cost; that said Chaney thereupon purchased the said 160-acre tract on the faith of said representations and expended money in constructing ditches and preparing said tract for cultivation; and in connection with this latter averment it is further alleged that the defendants and their predecessors in interest have used said ditch and right of way under a license and with the consent of plaintiff and “relying upon said license and consent have spent money in the construction of irrigating ditches and in preparing said land for cultivation”; 2. That the owners of said 160-acre tract were given the right to use said ditch and right of way for the purpose of obtaining water with which to irrigate said tract in an instrument whereby the right of way for said ditch was granted to the plaintiff company by the Bank of Woodland; that “at the time defendants’ predecessor in interest purchased the 160-aere tract, plaintiff represented that said tract was contiguous to the said ditch and now the plaintiff is estopped to deny the truth of said statement.” The right of the defendants to an easement in .said ditch and right of way by prescription is also set up.

The general contention of the appellant is that certain findings are not supported by the evidence and also that the conclusions of law are inconsistent with the findings of fact. As to the latter proposition, the contention is, in effect, that certain findings vital to the judgment, conceding that they are bottomed by sufficient evidentiary support, do not warrant the conclusions of law deduced therefrom by the court below. In other words, it is claimed that, admitting that the facts embraced within these findings are true, the trial court made an erroneous application of the law thereto.

The defendant, Schaupp, is the owner of the 160-acre tract and the defendant, Altman, the lessee thereof. The said 160-aere tract does not border upon the ditch, but adjoins on the west what is known as the “Foster land,” which does abut upon the ditch.

The plaintiff was organized as a corporation in the month of October, 1909, from which time uninterruptedly down to the date of the trial one William Metzner was president thereof. Charles J. Cox, Junior, became the secretary of the corporation at or about the time of its organization and held and discharged the duties of that office down to and including the year 1912. In this connection it should be stated that there were two persons officially associated with the corporation by the name of Charles J. Cox, they being father and son. The former was a director of the plaintiff. It should further be stated that, during the time he was secretary of plaintiff, Charles J. Cox, Junior, was engaged in the general real estate business in the city of San Francisco under the name of Cox and Company. Upon its organization the plaintiff adopted by-laws for the government thereof and its business. Section 8 of article X of said by-laws provided: “It will be the duty of the Secretary to negotiate all contracts for the purchase of lands, v'ater power and water rights; to supervise the de

The plaintiff, in the year 1910, purchased from the Bank of Woodland a 3,000-acre tract of land, situated in Yolo County, having in view the subdividing of said tract into smaller farms and putting the same as so subdivided on the market for sale. In the month of September of said year 1910 (probably at the time that the tract referred to was acquired by the plaintiff), the said Bank of Woodland granted to plaintiff a right of way for a ditch, the purpose of the construction of which was to divert water from Cache Creek, in said county, to the tract of land mentioned, the right to the use of so much water as might be necessary for said purpose or as might be conveniently permitted to be used therefor having been granted to the plaintiff by the Yolo Water & Power Company. Among the covenants contained in the instrument granting said right of way to plaintiff was the following: “It being further agreed and understood that the owners of land now contiguous to said right of way, and each of them, shall have the right to the use of said ditch for the purpose of conveying water therein for the irrigation of their land, such use to be free to them and to each of them.”

The plaintiff commenced the construction of a ditch over said right of way in the year 1910, shortly after the grant to it of said right by the Bank of Woodland. The said ditch taps Cache Creek at a point opposite the town of Cap ay, in Yolo County, and, having been completed, runs in a northeasterly direction for a distance of about six miles, where it reaches the tract of land already referred to as having been acquired by the plaintiff from the said Bank of Woodland. Said ditch is designated and known as the “Hungry Hollow Ditch” and is, in point of fact, a part of the irrigating system of the Yolo Water & Power Company.

On November 15, 1909, Charles J. Cox, Junior, secretary of the plaintiff, addressed a letter to one William Chaney, then residing in Hollister, California, proposing to secure for him the 160-acre tract in question. His letter reads:

“Dear Will: Enclosed you will find a small diagram of the land belonging to the Irrigated Valleys Land Company, shoAving the ditches in proximity to Cache Creek. The Company is building these ditches now, subdividing this big 3,000-acre tract into small farms and selling it for $125 per acre. The two pieces marked red on this map, consisting of 131 and 160 acres, respectively, adjoin our land and come under our ditch. I secured a contract on these two pieces Saturday, at $65 an acre, as the owner who is not a resident of this neighborhood does not know of the improvements going on there. It is fine rich soil and worth $150 an acre under ditch; anybody buying this now will get the benefit of the ditches for nothing. The Land Company have all they can handle and I would like' to have some friend of mine buy this property. Would like to have you go up and see it this week, and hope to hear from you at your earliest convenience.”

Chaney, testifying as a witness for the defendant, said that upon receiving the above letter, he wrote to Mr. Cox and asked him to give him further information with regard to the 160-acre tract; that Cox later visited him at his house and asked him to go with him (Cox) to see the land and the witness consented to and did do so. After inspecting the land, proceeded Chaney, ‘ ‘ Cox told me if I bought it I could use the company’s ditches, and that he wanted me to put out alfalfa, and he said it would be an advertisement for them and help sell their property.” Cox further informed witness that he (Cox) Avas the secretary and manager of the plaintiff. Acting upon the statements and representations made by Cox, Chaney bought the property on the day that he had the conversation with the former. ITe testified that he Avould not have bought the property if he had knoAvn or thought that he could not have irrigated it. He further stated that he had often seen Cox in and about the property that he bought in the company of prospective purchasers of the subdivisions of the plaintiff’s tract. The witness said that after he purchased the property he had a conversation with Cox about mapping the 160-acre tract as part of the lands of the Woodland tract and that Cox subsequently “shoAved me a map like this [a map being in the possession of the witness at the time he was testifying], and he said he had mapped that out and had marked it

Chaney entered into an agreement for the sale of the land on the twenty-first day of November, 1912, to Frank Galentine. Galentine on the sixteenth day of August, 1913, assigned his contract with Chaney for the purchase of the land to W. E. Joerger. On the fourth day of December, 1917, Chaney and Joerger joined in a deed conveying the land to the defendant, Sehaupp.

W. C. Wallace, heretofore mentioned as the man in charge of the distribution of the water of the Hungry Hollow ditch, testified that he distributed water to Chaney during the years 1911 and 1912 and to Joerger, while the latter was in possession of the land, during the years 1913, 1914, and 1915. He also furnished water to Galentine when he was in possession of the land. The defendant, D. J. Altman, testified that he bought property near the land in question in the year 1913 and was in a position at all times thereafter where he could observe operations on the 160-acre tract after it had been purchased from one Schultz by William Chaney. He stated that the land had been irrigated from the ditch during the years 1911 and 1912 and that in 1913 he took possession of the 160-acre tract under a lease; that he knew that the land had been irrigated from the water flowing through the Hungry Hollow ditch from the year 1911 to the year 1918, inclusive. He was particularly asked if the land was irrigated in the year 1916 and he replied that it was and that he saw the water on. the land. He stated that a pumping plant was installed on the 160-aere tract but that enough water to irrigate the land could not be obtained from that source and that the land was always irrigated by water obtained from the Yolo Water & Power Company and flowing through the main ditch in question. The pumping plant was finally abandoned and the engine sold. During the time that he was in possession of the land he stated that no one interposed any objection to the use of the water from the ditch until just prior to the commencement of this action, when he received a letter from the company, protesting against further use of the

Metzner, president of the plaintiff, testified that the company never “entered into any agreement with the owner or purported owner of this 160-acre tract in reference to the use of water thereon taken from the Hungry Hollow ditch.” He stated that he had no knowledge of the diversion of the water from the ditch to the 160-acre tract until a short time prior to August 31, 1912, when the company addressed to Chaney the letter heretofore referred to, declaring that the company recognized “no right in Chaney or any right as appurtenant to his land,” to obtain water through the company’s ditch or any ditch connected with said ditch; that he had no knowledge thereafter of the use of said water by Chaney or any of his successors in interest until some time in 1918, when it was learned by the company that the defendant, Altman, was diverting water to said 160-aere tract from the ditch and had diverted water from the ditch to the said 160-acre tract in the year 1917; that, upon learning this, the company addressed a letter to Altman, protesting against the taking of any water from the main canal of said company and diverting the same to the 160-acre tract in question and stating to him that unless he ceased so taking and using said water legal steps would be taken by the company to prevent him from further so diverting and using the same. Metzner testified that the company received no written reply to the letter addressed to Chaney, under date of August 31, 1912, but said that about a week or ten days after sending said letter to Chaney, he (Metzner) went to what is known as the Home Ranch of the company’s lands in Yolo County and that he there met Chaney; that Chaney, addressing him, said: “I got your letter, and I propose to use the water and you can’t stop me.” The witness said: “As far as I know, Mr. Chaney never continued to make an attempt to use it.” A letter written by G. D. Parish, a tenant in possession of the 160-acre tract, under date of May 20, 1916, was received by the company and therein Parish asked the permission of the company for the use of water to “wet a piece of grain and alfalfa” on said land. This letter was

G. D. Parish testified for the plaintiff in rebuttal that he had the 160-acre tract leased during the years 1916 and 1917; that he did not use the water on the premises in 1916, but did irrigate from the ditch in the year 1917. He stated that he did not have any alfalfa in 1916 because he had no water.

It should also be stated that it was shown that the distribution of the water was controlled by an employee of the plaintiff and that said employee generally used his own judgment as to the turning in of the water upon the various pieces of land which used the water from the Hungry Hollow ditch.

The above statement represents substantially all the important testimony received at the trial.

The findings are not of specific facts but are general in form, declaring that the allegations of the answer are true and those of the complaint untrue. As we have seen, the answer, besides specific denials, sets up the several different and distinct special defenses above referred to, and sets out with particularity the facts upon which each is founded. It follows that all of the material facts so alleged, as well as those facts which were brought out by the evidence in support thereof, are. comprehended within the findings or were found to be true by the court, viz.: 1. That the grant of the right of way for the ditch to the plaintiff by the Bank of Woodland also specifically granted to the owner of “land now contiguos to said right of way” the right to the use of said ditch for the purpose of conveying water therein for the irrigation of their lands, “such use to be free to them and to each of them.” 2. That Cox, Junior, "was, at the time of the purchase of the 160-acre tract by Chaney, secretary of the plaintiff and its agent for the sale of the lands embraced within the tract for the special irrigation of which the right of way for a ditch was granted to it and the

That the evidence, of which we have above presented an epitomized statement, is amply sufficient to support said findings is a proposition which it seems to us stands beyond the realms of doubt or disputation. The remaining question is, therefore, whether the court deduced from said findings the correct conclusions of law.

It is not necessary, nor is such the intention, to express a definite opinion upon the question whether the 160-acre tract is “contiguous” to the main ditch within the meaning and intent of the grant of the right of way for a ditch by the Bank of Woodland to the plaintiff. We may, however, venture these suggestions in connection with this proposition: That it is probable that the bank by the insertion oE that covenant in the grant intended to confer upon all owners of land in the immediate community or neighborhood in which the tract of the plaintiff is situated the right to the use of the ditch for irrigating purposes; and the word “contiguous” would not be wholly inapt in the expression of such meaning and intent under the circumstances of this case. In Ann. Cas. 1918E, page 798, it is said that, while the primary meaning of the word “contiguous” is “in actual contact, touching, meeting or adjoining at the surface or border” (Johnston v. Davenport Brick etc. Co., 237 Fed. 668 ), and that it must, therefore, always be so understood, unless the context shows it was otherwise intended (Holston Salt etc. Co. v. Campbell, 89 Va. 396 [ 16 S. E. 274 ]), still the meaning of the word depends largely on the subject matter to which it is applied. (Griffin v. Denison Land Co., 18 N. D. 246 [ 119 N. W. 1041 ].) It is reasonable to suppose that if the right-of-way was granted by the bank for the exclusive use and benefit of the lands embraced within the plaintiff’s 3000-acre tract, the instrument granting the easement would probably have expressly so provided, or, in other words, restricted the employment of the ditch to such use, and, therefore, the fact of the omission from the grant of such a provision affords some support to the suggestion that the word “contiguous” was used in the grant as in

[1] As secretary of the plaintiff, Cox, Junior, it will be observed, was vested with full power not only to sell the lands and water rights of the plaintiff, but was also given general power to develop the said lands for marketing purposes. He was also, moreover, by special action of the board of directors of the plaintiff, given authority to act as its sales agent and manager, with power to sell its lands. As secretary, in so far as the authority to dispose of the lands and concomitant rights of plaintiff was concerned, his powers were as broad as or coextensive with those of the corporation itself. And, as is said by Chief Justice Shaw in the very recent case of Woods Lumber Co. v. Moore, 183 Cal. 497 , 501 [ 11 A. L. R 549 , 191 Pac. 905 ]:

[2] “ A corporation engaged in carrying on a business which it is authorized to do by its articles and the law under which it is organized has implied power to make all contracts which are ‘ essential to the successful prosecution of the business’ (Civ. Code, sec. 354, subd. 8; Bates v. Coronado B. Co., 109 Cal. 163 [ 41 Pac. 855 ]; Mercantile Trust Co. v. Kiser, 91 Ga. 636 [ 18 S. E. 358 ]), or the making of which is an appropriate means by which it may be ‘reasonably expected that the business in which the corporation is engaged will be advanced’ (Depot R. Syndicate v. Enterprise Brewing Co., 87 Or. 560 [L. R. A. 1918C, 1001, 170 Pac. 294 , 171 Pac. 223 ]), or which are ‘necessary and helpful to the conduct of its authorized business’ (Timm v. Grand Rapids Br. Co., 160 Mich. 371 [ 27 L. R. A. (N. S.) 186 , 125 N. W. 357 ]), or which tends directly to promote the business authorized by its articles and which it is doing. (Kraft v. West Side Brewery Co., 219 Ill. 205 [ 66 N. E. 372 ]; Central L. Co. v. Kelter, 201 Ill. 503 [ 66 N. E. 543 ]; Blue Island Br. Co. v. Fraatz, 123 Ill. App. 26 ; Horst v. Lewis, 71 Neb. 365 [ 98 N. W. 1046 , 103 N. W. 460 ].)”

That the plaintiff is authorized, either expressly or impliedly, to do all of these things for the successful prosecution of the business for the carrying on of which it was or

[3] It being true, then, that Cox possessed plenary power, as secretary and sales-manager of the corporation, to make for and in behalf of the corporation the said agreement with Chaney, it follows that Chaney entered into the use of the ditch under a parol license from the plaintiff and that, upon the incurring by him of expenditures of 'money in buying the land and also for the purpose of facilitating the use of the easement and in cultivating the tract according to the suggestion of Cox, Junior, the license became irrevocable. (Churchill v. Russell, 148 Cal. 1 [ 82 Pac. 440 ]; Stoner v. Zucker, 148 Cal. 516 [ 113 Am. St. Rep. 301 , 7 Ann. Cas. 704, 83 Pac. 808 ]; Roseherry v. Clark, 23 Cal. App. 549 [ 138 Pac. 923 ]; Smith v. Green, 109 Cal. 228 , 234 [ 41 Pac. 1022 ]; Blankenship v. Whaley, 124 Cal. 300 , 304 [ 57 Pac. 79 ]; Flickinger v. Shaw, 87 Cal. 126 , 131 [ 22 Am. St. Rep. 234 , 11 L. R. A. 132 , 25 Pac. 268 ]; Rerick v. Kern, 14 Serg. & R. (Pa.) 271 [ 16 Am. Dec. 497 ]; Stepp v. Williams, 52 Cal. App. 237 [ 198 Pac. 661 , 668, 669]; Raritan Waterpower Co. v. Veghte, 21 N. J. Eq. 475 . See, also, comment of Professor Freeman' on the last-named case in 16 Am. Dec. 501 et seq.)

In Stoner v. Zucker, supra, at page 520, the doctrine is thus explained:

“The recognized principle, therefore, is that where a licensee has entered [upon the premises otE another] under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and

the license will continue for so long a time as the nature of it calls for.”

In Raritan Waterpower Go. v. Yeghie, supra, the rule is stated as follows:

“To the -extent that the license is executed, equity will not disturb it or permit its revocation. Where improvements of a permanent nature have been made by a person on his own land, the enjoyment of which depends upon a right recognizable by the law, affecting the land of another, and to which his consent is necessary, and where such consent is expressly proved, or necessarily implied from the circumstances, and the improvements have been made in good faith upon it, equity will not permit advantage to be taken of the form of consent, although not according to the strict mode of the common law, or within the statute of frauds; and to defeat such a purpose' will, upon a proper bill filed, enjoin the licensor from accomplishing his fraud, or when he asks relief it will be refused, or if granted, will be allowed merely in the shape of compensation, but protecting the right of the licensee.”

[4] Appellant, however, takes the position that the license whereby Chaney acquired the right to the easement cannot inure to the benefit of his successors in interest, inasmuch as the latter themselves made no expenditures in improving the property upon the faith of any representations made by Cox to Chaney and that no representations were made to them. In other words, the contention is that an estoppel cannot be set up here for the reason that there were no representations or promises made by Cox, Junior, to any of the successors in interest of Chaney. The reply to this proposition is, though, that the license under which Chaney entered into the use of the ditch having become irrevocable, the right acquired thereby and thereunder became appurtenant to the 160-acre tract. Furthermore, the successors in interest of Chaney took the land with the ditch as constructed by the latter and which connected with the main ditch and the said ditch remained in the same condition from the time of its construction down to the date of the institution of this action, during which period of time the appellant made no attempt to interrupt the use of the ditch in any manner until August 31, 1912, and, later, April 30, 1918 (approximately a month prior to the commencement of this action),

Counsel for the appellant, however, declares that the letters from the plaintiff to Chaney and Altman, protesting against their use of the ditch, constitute convincing, if not conclusive, evidence that the respondents were not given the license pleaded in the answer. But the answer to this is that permission had been granted to Chaney to use the ditch and the same had developed into an irrevocable license before said letters were received by either of the parties named. [6] Moreover, Altman, as we have seen, was only a tenant or lessee of the 160-acre tract and 'in such case such a protest addressed to a mere tenant of the property against the

But the judgment may securely rest upon the finding that the defendant, Schaupp, acquired title to the easement or the right to the use of the ditch by prescription. As seen, the plaintiff, in a letter to Chaney, under date of August 31, 1912, notified him to cease using the ditch, but a few days thereafter, Metzner, president of the plaintiff, according to his own testimony, met Chaney and they discussed the matter of the receipt of said letter and Chaney then declared to Metzner that, he proposed to use the ditch or the water, ‘1 and you can’t stop me.” The evidence clearly shows that from that time until and immediately preceding the date of the commencement of the present action Chaney and his successors in interest continuously used the ditch under a claim of right, or, in other words, for a period of more than five years from the date of said conversation between Metzner and Chaney. It is true that one witness testified that in the year 1916 no water from the ditch was used on the land, the explanation being that the spring of 1916 was a late, wet season and that there was really no necessity for using the ditch. This testimony came from the 1916 lessee Of the 160-acre tract. This, though, if true, would not be such an omission in the use of the ditch as to have the effect of breaking the continuity of the user. The failure, if any, to use the ditch in the year 1916 was not due to any act of the owner but to the fact only that the circumstances were such that water from the ditch was not needed. The omission amounted neither to a nonuser nor evidence of an intention to abandon the easement. In other words, as counsel for the defendants well say, “continuous use” does not necessarily mean “constant use.” [7] Where one who claims an easement uses it as often as it may be necessary for him to do so, the use is generally held to be continuous and this is particularly true with reference to easements connected with irrigation. (Hesperia Land & Water Co. v. Rogers, 83 Cal. 10 [ 17 Am. St. Rep. 209 , 23 Pac. 196 ]; Bodfish v. Bodfish, 105 Mass. 619 .) There was, however, other testimony to the effect that water was conveyed to the 160-aere tract from the ditch in the year 1916. And from the entire evidence the court remained well within its discretion in finding that the defendants claimed and exercised the right to use the

But it is further argued that, from the fact that the owner in the year 1915 installed a pumping plant on the 160-acre tract, capable, as is the claim, of irrigating the entire acreage, and from the further fact that a tenant in 1916 asked permission of the company to irrigate the tract from its ditches, the irresistible conclusion is, and the court should have so found, that the appellant could not have known, nor did it have any reason to believe, that the 160-acre tract was being supplied with water conveyed through the company’s ditches. But there is no showing here that the appellant had any knowledge of the existence or the establishment of the pumping plant; and the fact that a tenant of the owner of the land in 1916 asked permission of the company to irrigate said land from its ditches would not necessarily show that said ditches had not been used or were not being used for the purpose of conveying water to the lands of the defendants, or that the appellant did not know that they were being so used. At any rate, the trial court, it seems, did not attach any significance to the circumstances here referred to, concluding, as we may presume, and as it had a right to do, that the other facts and circumstances in the case, tending to show the continuous and uninterrupted use of the easement, were sufficient to overcome the probative effect of any facts or circumstances leading to an opposite conclusion upon the question of adverse user.

[8] Lastly, we may briefly consider the point, made at the threshold of appellant’s argument, that the defense based on the license and that of title to the easement by adverse user are inconsistent, in that possession by license is not adverse and cannot ripen into a title. If the license were revocable there would no doubt be force in that contention; but, as we have shown, the license became irrevocable, and it was within the right of defendants to set up either or both of the said defenses as the basis of their title to the easement. The situation is no different from a case where a party, suing to quiet title to land, would set up and prove a conventional title thereto and at the same time title by adverse possession. (Porters Bar Dredging Co. v. Beaudry, 15 Cal. App. 751 , 763 [ 115 Pac. 951 ].) It follows, also,

We have discovered no substantial reason for disturbing the judgment herein, and it is, accordingly, affirmed.

Burnett, J., and Finch, P. J., concurred.