Powers v. Perry

COOPER, P. J.

This action was brought for the purpose of quieting plaintiffs’ title to an alleged water right in and to sufficient water from a spring on defendants’ land for “household purposes,” for the right to convey the same through a pipe to the adjoining lands of plaintiffs on the west, and to enjoin the defendants from in any way interfering with such water right. The case was tried before the court without a jury, and findings filed upon which judgment was entered for plaintiffs as prayed. This appeal is from the judgment and from the order denying defendants’ motion for a new trial.

The main facts, concerning which there is no controversy, are substantially as follows: On the twenty-eighth day of April, 1898, one Edward White and his wife were the owners of a tract of land in Santa Cruz county, which tract embraced the lands now owned in separate tracts by plaintiffs, by defendants and by White. On said day White conveyed to plaintiffs the lands described in the complaint, containing about fifty-four acres, by an ordinary grant, bargain and sale deed, which deed contained no reference to any water right of any kind. This deed was immediately placed upon record. On the same day, and as a part of the consideration, White executed and delivered to plaintiffs a written grant to the waters of a spring on the adjoining land retained by White “sufficient for household use,” with the right of ingress and egress to and from the land on which the spring was situated. The plaintiffs entered into the possession of the land so conveyed to them, and used the waters of the spring for household purposes by taking the animals to the spring to water them, and by hauling the water to their dwelling-house west of the spring. No controversy arose between the plaintiffs and White as to the use of the waters from the spring.

On November 1, 1900, White, by an ordinary deed of grant, sold and conveyed the tract of land now owned by defendants and on which the spring is located to one Patterson, which deed was duly recorded. This deed made no men

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tion of the water right of plaintiffs nor did it refer to it. Patterson, however, had actual notice of the claim of plaintiffs to the use of the waters of the spring, but he did not know of the water right being in writing. No question, however, arose between Patterson and plaintiffs as to the use of the water. During the year 1904, with the consent of Patterson, the plaintiffs ran a three-quarter inch pipe some ten or twelve inches underground from a box at the spring down the hill, across a canyon, and thence up the hill about one hundred and fifty feet west of the boundary line between Patterson and plaintiffs, where the pipe again emerged from the ground by a stand-pipe which emptied into a trough on the land of plaintiffs. This pipe, at the point where it leaves the spring, was parallel to a similar pipe which extended from the box at the spring down the hillside to a trough on the Patterson land, where it emerged from the ground and emptied into the said trough for the use of Patterson. This condition appears to have continued without interruption until the fifteenth day of May, 1906, when Patterson, for a valuable consideration, sold the land to defendants, and executed a deed of conveyance to them. The sale by Patterson was made through an agent,* who showed defendants over the premises, but neither Patterson nor the agent spoke to defendants as to any claim of any kind of a water right. In fact, it is not now claimed that defendants had any actual notice as to the plaintiffs’ claim to the water. Defendants had the records searched, but the grant to the water right claimed was not of record. It was not until July, 1907, that defendants, according to their testimony, discovered, and at the same time objected to, the use of the water through the pipe from their spring. In August, 1907, the plaintiffs placed the grant to the use of the water made to them by White of record.