Peterson v. McDonald

HART, J.

The trial court sustained a demurrer to the third amended complaint without leave to amend, and rendered and caused to be entered judgment against plaintiff and in favor of defendant for her costs.

The demurrer was both general and special, the latter challenging the court’s jurisdiction of the “subject matter of said action, or of the subject of said action.”

The appeal is from the judgment so rendered and entered.

The action grows out of a transfer of a certain piece of real property situated in the city of Eureka, Humboldt county, by the plaintiff to the defendant.

The complaint alleges that the plaintiff, on the thirty-first day of March, 1905, wás the owner in fee of a piece or lot of land in said city of Eureka, the same being one hundred and twenty feet in length and an equal number of feet in width; that situated on said land were two dwelling-houses; that on said day he conveyed to the defendant a portion of said land, the land so conveyed being sixty feet in width by one hundred and twenty feet in length, and upon which one of said dwelling-houses was situated; that plaintiff retained the remaining portion of said land (fifty-eight feet by one hundred and twenty feet in dimensions), on which the other dwelling-house was situated, and where, with his family, he intended to and did reside after the date of the transfer of a portion of said land to defendant, and that on the land so retained by him there also resided, during some of the time mentioned in the complaint, certain tenants or parties to whom he had leased said premises. It is further alleged that on the portion of the land sold to defendant there were and had been for a long time prior to the date of the sale and execution of the conveyance

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of said land to defendant, 1 ‘ a water well, a structure containing a water tank and a windmill and pump connected therewith, used for the purpose of filling said tank with water from said well, which said water is particularly clear, pure and healthful and containing superior qualities for cooking, washing and drinking; that water from said tank was at all said times used to supply both said dwelling-houses and premises upon which they were situated with water, and said strip fifty-eight feet wide off of the north part of said land (the part retained by plaintiff) was and is supplied with water from said tank by a service pipe running from said land comprising the strip sixty-two feet off the south part of said land, . . . ”; that said portion of said land retained and owned by plaintiff “never has had at any time of the times herein mentioned, nor has it now, a well thereon or provided with any other means of obtaining water thereon, or supplying water for said dwelling-house thereon except as above set forth.” It is averred that, as a part of the consideration for the sale and conveyance to the defendant of the land on which said well is situated, the plaintiff expressly reserved in the deed of conveyance the right to use for domestic purposes, and to that end have carried to his land, by means of a pipe connected therewith, water pumped from said well; that by virtue of the terms of said reservation water pumped into the tank situated near said well and on the said premises of defendant “has been used in said dwelling-house of plaintiff when required, and he has paid for all water used by him for said dwelling-house up to March 1, 1906”; that, on said last-mentioned date, “she, said defendant, without cause or excuse, against the will of plaintiff, shut off the water from flowing in said pipe from said tank to his said dwelling-house, and ever since has, and now prevents the flow of water from her said tank to his said dwelling-house; and plaintiff is informed and believes and alleges that defendant has threatened to keep said water shut off permanently from said dwelling-house and not to allow the use of it again therein.” It is further alleged that the plaintiff, on March 2, 1906, and on March 3, 1906, tendered to defendant the sum of fifty cents as payment in advance for the use of said water for said month of March, said amount being the sum stipulated in the said reservation for which the plaintiff was to have the use of said water. Plaintiff alleges