Service v. Bedros

WILBUR, J.

Respondents brought an action against the appellant to prevent him from interfering with a certain ditch furnishing water for irrigation of respondents’ land, which ditch runs through the appellant’s land. This ditch, about ten feet wide at the bottom and five feet deep, had been constructed by Maze and Wren about fifteen years before this action was brought, for the purpose of conducting water from Lateral No. 3 of the Turlock Irrigation District to a colony tract belonging to Maze and Wren, and ran through the land of the several respondents. In order to procure rights of way for said ditch, Maze and Wren entered into a verbal agreement with appellant’s predecessor and with the several respondents. The respondents gave the right of way for said ditch through their property below the lands of the appellant and above the lands of Maze and Wren, and co-operated in the construction of the ditch, upon consideration of their being allowed to use the ditch for the purpose of conducting irrigating water to and upon their own lands. Maze and Wren paid Mollard, the then owner of the Bedros land, $120 for the right of way and in consideration of Mollard enlarging the ditch and extending the same about one hundred feet. In pursuance of this arrangement the ditch was constructed, and for more than fifteen years the water has flowed across the land of the appellant to and through and sometimes upon the lands of the various respondents.

Respondents base their claim to the ditch upon the,executed oral agreement. Mollard, it should be noted, after having sold the land now owned by Bedros, title to which has vested in the latter by mesne conveyances, purchased or theretofore owned one of the pieces of property below the Bedros land irrigated from the ditch in question. Appellant contends that the agreement made by Mollard does not make the tenement owned by him a servient one, for the reason that in the agreement in question no dominant estate is pointed out, and that Bedros at the time he purchased had no notice or knowledge of the rights of the respondents. The portion of the record printed by the appellant in his brief is very meager. In the opening brief, while in the statement of facts appellant inserts

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frequent parenthetical references to the typewritten transcript, only one short excerpt of twenty-five lines from the testimony is printed, and this consists of quotations from the testimony of Mollard with relation to his agreement with Maze and Wren. The quotation, taken alone, is unintelligible, as there is nothing to show the connection of Maze and Wren with the various parties to the transaction. No portion of the pleadings, findings, or judgment is printed in the opening brief and in appellant’s reply brief, after his attention had been called by respondents to the statutory requirement that parties must print in their briefs “such portions of the record as they desire to call to the attention of the court” (Code Civ. Proc., see. 953c), he contents himself, so far as the judgment-roll is concerned, with the following quotation from the findings: “That the plaintiffs were at all times mentioned in the complaint and are now the owners of a certain irrigating ditch and the right of way therefor situated, etc.” In the reply brief appellant also prints testimony indicating that Foster had never used any water from the ditch except for watering stock; that Service never used any of the water to irrigate with; that Carter never used any water from the ditch on his land; that Mollard never used any of the water to irrigate his land east of the ditch, and that Farr never used any of the water for irrigation purposes. The typewritten transcript contains 176 pages. The burden is upon the appellant to show that there has been a miscarriage of justice, in order to justify a reversal of this case. Instead of that, it is fairly apparent that he is seeking to take advantage of the fact that the parties wrote their agreement on the ground instead of on paper. The principal contention of the appellant is that the agreement relied upon by respondents was made by the appellant’s predecessor with Maze and Wren and not with respondents.