Graham v. Pasadena Land and Water Co.

[597]

SHAW, J.

The record presents appeals by the plaintiff on a judgment in favor of the defendant and from an order denying her motion for a new trial.

The transaction involved in the case, the validity of which is attacked by the plaintiff, is the same as that which was considered and held valid by us in the companion case entitled,

City of South Pasadena

v.

Pasadena Land and Water Co., ante,

p. 579, [93 Pac. 490]. The facts are fully stated in the opinion in that case, so far as they correspond with the facts here. In this case a trial was had and findings made which present some different questions. We will, in this opinion, consider only these questions, so far as they are presented in the argument.

The plaintiff owns land on which she resides. It is situated within the district served with water by the defendant, in the city of South Pasadena. She is also a stockholder in the defendant company. She sues on behalf of herself and of other stockholders similarly situated and having similar rights.

It is specifically alleged that the water furnished for use on the land is an easement appurtenant to the land. The court found that this allegation was not true. It is admitted by the pleadings, however, that the plaintiff had bought the land from the San Gabriel Orange Grove Association, a corporation, which then owned the water supply in question, and which afterwards transferred the said supply together with this water system to the defendant; that the by-laws of said association provided that the water should be supplied to the lands which it sold, to be used thereon, and that always thereafter said water was supplied to said land for such use in accordance with the original understanding. It is clear that the finding is not warranted by the admitted facts of the case and we think it was not sustained by the evidence introduced. Under the facts stated, the right to receive water from the supply under the control of the defendant, is clearly appurtenant to the land of the plaintiff. (Civ. Code. secs. 552, 801.) The finding, however, is a mere conclusion of law, and, besides, we think it is entirely immaterial. The record shows that it was assumed, throughout the case, that the plaintiff, and others similarly interested, have the right to receive of the waters in controversy for use on their respective tracts of land, a sufficient quantity for the need thereof, if there is