Palvutzian v. Terkanian

From a judgment in favor of the defendants the plaintiff appeals. The suit was for damages and for injunction to prevent interference with certain irrigating ditches and the flow of water over the defendants' land for which the plaintiff claimed an easement.

The court found that prior to 1885 the predecessors of both the plaintiff and defendants owned in one body the lands now owned by them severally. While the lands were held in single ownership two irrigation ditches or canals were constructed across the tract. These ditches were connected with the main ditch or canal of the Fresno Canal and Land Corporation's system of irrigating ditches. Since their construction they have been the only source from which water can be obtained for the irrigation of plaintiff's land, except by the installation of a pumping plant or the acquisition of a right of way for ditches over other property. The ditches were at all times since 1885 the visible and obvious means of transporting water to the lands now owned by the plaintiff. For two or three years between 1885 and 1908 they were not used, but they were used continuously for five years commencing in 1909. In 1908 the owner of the entire tract conveyed to the defendant Terkanian one portion of the tract. Thereafter the grantor and his successors used the ditches on the portion theretofore conveyed. The plaintiff acquired his portion of the original tract in 1915. In October, 1916, "at the special instance and request of the defendant, John K. Terkanian, and one Kienitz," who was the owner of an adjoining tract over which the ditches in controversy ran, Kienitz, the plaintiff, and Terkanian entered into an agreement which is summarized in the findings, but to which it is proper to make some further reference. Kienitz was named as the party of the first part and the plaintiff, Palvutzian, and the defendant, Terkanian, were joined under the designation of the "second party." It recited the ownership of Kienitz of his land, "and that a certain ditch or canal is now located upon the premises of the first party and that said ditch or canal is now used for the purpose of furnishing water for irrigation purposes to second party." It was agreed that "in consideration that first party furnish to second party through and by means of a pipe-line [which was to be and was constructed in lieu of the old ditch on the Kienitz land] *Page 49 an amount of water equal to the quantity which has been furnished by said ditch or canal to second party; second party hereby agrees to waive any and all rights that they may or might have in said ditch and further agree that said first party shall be allowed to obliterate said ditch and substitute therefor the said proposed pipe-line, it being understood that first party shall in no manner lessen the quantity of water heretofore furnished to second party by and through said ditch or canal." Taking this contract by its four corners it appears to have been made as much for the benefit of the plaintiff as for the defendant, Terkanian; that the latter by joining in it recognized Palvutzian's right to the water as equal to his own, and that all three of the adjoining land owners recognized the right of the lower owners on the ditch to the flow of water over the lands of the upper owners, merely agreeing that on one of the upper tracts the pipe-line might be substituted for the existing ditch, thus changing the easement from the right to have the ditch maintained to one to have the same flow of water through the pipes.