Cuddy v. O'Brien

STURTEVANT, J.

The plaintiff commenced an action against the defendants to obtain a judgment quieting his title to certain lands in Kern County. The defendants had judgment and the plaintiff has appealed therefrom bringing up the judgment-roll and a bill of exceptions.

The plaintiff’s complaint was in the ordinary form of a complaint to quiet title, and described the lands as being the "Southeast quarter of southeast quarter of Section 28,

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Township 9 North, range 19 West, S. B. B.

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M. 'North half of northeast quarter of Section 33, Township 9 North, Range 19 West, S. B. B. & M.” The defendants, Thomas O’Brien and N. C. Farnum, appeared by their attorney and filed an answer admitting that the defendant 0 ’Brien claimed an interest and pleaded that the defendant O’Brien claimed such interest under and by virtue of a written instrument as follows:

“This Indenture made this 12th day of April, 1917, between J. D. Cuddy of Kern county, California, the party of the first part, and N. C. Farnum of Alameda County, California, the party of the second part, Witnesseth:

“That for and in consideration of ten dollars in hand paid, the receipt whereof is hereby acknowledged, the first party does by these presents lease and demise unto the said second party or his assigns, for the term of fifty years at an annual rental of ten dollars, payable in advance on the first day of Hay of each year, and other valuable considerations, that certain spring located1 on the Northerly half of Section thirty-three, Township Nine North, Range nineteen West, S. B. B. & M., Kern county, California, including a right of way across the above described land, eight feet wide for the passing of conveyances, and a pipe line for the conveyance of water from a spring situate near the center of the North half of said section thirty-three to the easterly line thereof, with the right to improve the said spring by trying to produce more water, also the right to fence said springs, enclosing fifty feet square of land with a suitable fence, and improve the spring by building a dam, and covering the spring in any manner he may desire and also to dig a trench on above mentioned right of way, from said spring to the easterly line of said above described section thirty-three to a depth of two feet to receive the water pipe above mentioned. The party of the second part agrees to lay a small iron pipe from above described spring in a northeasterly direction to furnish water to the cattle of the first party. It is further agreed by and between the parties to this lease that should the above mentioned spring fail from any cause to furnish the amount of water required by second party or his assigns, the first party hereby grants to second party or his assigns the right to