Porto v. Vosti

DOOLING, J.

This is an appeal by plaintiffs from a judgment rendered against them in an action brought to partition two wells and pumping plants.

Appellants Carlo and Ida Porto, husband and wife, are the owners of a ranch consisting of approximately 150 acres. This property adjoins approximately 90 acres of land owned

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by respondents Elvezio and Andreina Vosti, also husband and wife. The two water wells with which this action is concerned are located on the dividing line between the two properties. The first of these wells (with a 50-horsepower pump) was installed in 1947. The second well (with a 60-horsepower pump) was installed in 1950. By this action appellants sought to have the 60-horsepower well and pump set aside to them along with the sum of $1,270.04. They asked that the other well and pump be allotted to respondents.

As part of their answer respondents set forth copies of two agreements entered into by the parties to this action. These agreements dated December 10, 1947, and February 12, 1951, set forth the terms under which the initial cost and the cost of repairs and replacements were to be borne by the parties and state the respective interests of the parties in the wells and pumping plants. Under the agreement dated December 10, 1947, the land ownership of both parties was recited; it was then stated that the parties had jointly drilled a well on the boundary line between their properties and equipped it with a pumping plant at a total cost of $6,561.70; it was agreed that this well and pumping plant was to be used as a source of water for irrigation purposes on the land of each party; it was further agreed that respondents should pay 38.23 per cent of the total cost of the well and pumping plant and that appellants should pay" 61.77 per cent of this total cost; the interest of both parties in the well and pumping plant was stated to be the same "as their proportionate share of the total cost of the well and pumping plant; the parties agreed that the cost of all repairs or replacements required should be borne by them in proportion to their respective interests, respondents to pay 38.23 per cent and appellants 61.77 per cent of the costs of all repairs and replacements; all electrical service charges were" to be paid by the parties in proportion to their respective interests each party should pay for the actual power consumed by him in the operation of thé pumping plant. The right to use the water was governed by the following paragraph: