ALHAMBRA ADDITION WATER CO. v. RICHARDSON and Others, 2 Cal. Unrep. 722

FOOTE, C. This action was brought with a view of obtaining a judgment affirming to the plaintiff the whole of the right, title, and interest in and to certain waters mentioned in the complaint, as well as to the pipe which conducted said waters over the defendants1’ land, as also to the waterworks and appurtenances thereto belonging. An injunction was prayed for, restraining the defendants from tapping the pipe and taking water therefrom, or in any other manner interfering with or diverting the same.

The defendants’ demurrer to the complaint was overruled, and then they answered, stating substantially that they owned a certain tract of land over which the pipe was conducted, and were entitled to take a sufficient amount of water therefrom to irrigate said land, and that such privilege they have exercised for more than sixteen years, adversely, openly, notoriously, and uninterruptedly, under a claim of right.

And with a view, evidently, to show an estoppel in pais as to the plaintiff’s right to dispute the defendants’ claim as aforesaid, the answer sets forth, in brief, this state of facts: That before Richardson, one of the defendants, purchased the land upon which he claims the right to the use of said water, he asked Mr. Wilson, upon whose land the spring was situated from which the water took its rise and naturally flowed, whether that land, now called the “Richardson Place,” was entitled to sufficient of that water for the purposes of its irrigation, and for the domestic uses of its occupants, and that Mr.

Wilson, with a knowledge and understanding of the object of the inquiry and of the surroundings, stated that such land was entitled to such water, and that, relying upon this statement of Wilson, Richardson purchased from Hutchinson, his codefendant, an interest in the ‘ ‘ place ’ ’ in good faith, and put thereon various valuable improvements ; that for many years after that time, and up to the year 1875, the water in question flowed to the said premises in and through an open ditch; that this resulted in a waste of water; hence, for the purpose of preventing such waste, the plaintiff’s predecessors in interest, who were entitled to all the waters flowing from said source on Wilson’s land, except that acquired by defendants as aforesaid, concluded to dispense with the exposed conduit, and to run the water through an iron pipe; to this desire, expressed to them on the part of the plaintiff, the defendants assented, upon condition that the pipe should be so laid as that the latter would be enabled to use therefrom a quantity of water sufficient to irrigate their lands, which was the portion thereof to which they had theretofore been entitled; that upon this agreement the pipe was put down in 1875, and hydrants attached thereto for the defendants’ use; and that such hydrants have ever since been used by them for the taking from the pipe the amount of water which they then, and for many years before had, claimed as their own.

The issues thus raised were submitted to a jury, and were passed upon by them favorably to the defendant. The trial court adopted such findings, and added others as to matters not fully covered by the interrogatories upon the subject submitted to the jury.

Upon all the findings, judgment was rendered for the defendants, upholding their claim to a certain portion of the - water in dispute, and, as an incident thereto, the use, and an interest in it (so long as the pipe should remain as constructed ; that is, so long as it should remain as a conduit of the water over and through their land, and to the waterworks, which were necessary to its being run through said pipe), sufficient to enable the defendants to take from the pipe, and make use of it, at any point on their land, the quantity of water which of right belonged to them.

At least, such is the proper construction of the language of that judgment as it appears to us. The evidence, conflicting as it is, does not warrant a disregard of those findings.

From the record, it appears in evidence, on the part of the defendants, that, under an agreement between the parties to this action, the defendants com sented to discontinue the wasteful use of the water through the ditch, and allow the same to be conducted over their land by the plaintiff in a pipe, upon condition that the former might tap the pipe, and take the water which they then were, and had for many years been, the owners of, at any point on their said land, that this agreement was executed by both parties thereto, and that such execution has been continuous and uninterrupted for many years. - The findings of the court, as we think, are sufficient at least to show that it passed upon the issue raised, and believed such facts to be true.

Hence it would appear that, as a matter of law, the plaintiff should be estopped from any interference with the rights acquired by the defendants to the use of the pipe, and its appurtenances, as long as the former remains a conduit for the water over the defendants' land, and that the defendants. are entitled to tap said pipe, and use the water, which they are declared to be owners of, so long as said pipe remains, with its appurtenances, as “now constructed.” It therefore becomes unnecessary to,pass upon any of the other questions arising upon the record, as the issue thus properly made by the pleadings, and found in favor of the defendants, entitles them to the judgment, as we understand its meaning.

The judgment and order denying a new trial should be affirmed. We concur: Belcher, C. C.; Searls, C. By the COURT.—For the reasons given in the foregoing opinion the judgment and order are affirmed.