German Savings & Loan Society v. McLellan

ANGELLOTTI, J.

This is an action commenced March 7, 1899, to quiet plaintiff’s title to a tract of land in Contra 'Costa County, containing some 261.33 acres. Plaintiff is the •owner thereof except in so far as its title is affected by an ■alleged parol contract of sale set up in defendant’s cross-complaint, under which it is alleged, he entered into and remains in possession, and as to which he seeks specific performance. The issues made by the cross-complaint and plaintiff’s answer were tried by the court with an advisory jury, findings of the .jury in favor of the defendant were adopted by the court, and ■a decree of specific performance was given on October 3, 1899, as to the land “save and except the small pipe spring further from the house shall be retained to plaintiff with privilege of running the water through pipes over the land, conveyed to tanks prepared to receive such water and to carry such water from said tanks.” On October 2, 1905, an order was made •denying a motion for a new trial. This is an appeal by plaintiff from the judgment and from the order denying the motion for new trial.

For the purposes of this appeal, it is necessary to consider but one point. The property in question was a part of a tract •of land owned by plaintiff, known as the Hemme Ranch, which had been subdivided into smaller subdivisions for purposes of sale, and a map thereof showing such subdivisions, numbered as lots, had been made. Lots 32, 33, 34, and 35, with an area

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of 73.70 acres, comprised what is called the orchard tract, lot 30 adjoining this on the northeast contained 33% acres of farming land, and lot 28 southwest, west and northwest of the orchard, contained 254.06 acres of hill and pasture land. There was on the orchard tract and about qne hundred yards from the house thereon a valuable spring, known as the large or main spring, which was connected by pipes with tanks owned by plaintiff situated on the Hemme Ranch, and the water of this spring, which was the main supply of such tanks, was used by various persons holding under plaintiff, including any occupant of the orchard tract. The testimony indicated that there was also a small undeveloped spring on this tract, some two hundred yards or more from the house, but there was some evidence on the part of defendant that there was in fact no-real spring there, and the jury in response to the question “How many springs were there on the property in question near the house?” answered “One.” In the southeasterly corner of lot 28, in accordance with defendant’s testimony,, about one fourth of a mile from the house, there was a developed spring, very much smaller than the one in the orchard,, but sufficient, defendant testified, “for farming purposes for one or two families.” There was some slight testimony which indicates that this spring was also connected by pipes with the tanks. Defendant first examined this property in the early part of October, 1899, being shown it by Mr. Harrison, plaintiff’s agent in charge, who was without any authority, so far as appears, to make any definite arrangements. Whatever definite arrangements were made were had with Mr. Tourny, secretary of plaintiff, at plaintiff’s bank in San Francisco. After some preliminary meetings Mr. Tourny and defendant apparently reached an understanding on October 20, 1899, that defendant was to purchase, for a consideration as to which there is some dispute and which is not material on the point we are discussing, the orchard tract, lot 30 (the farming land), and the portion of lot 28 lying south of a line then roughly drawn on the map by them across said lot, which would include-the spring thereon. It is undisputed that it was understood that plaintiff was to reserve one spring, the tanks, and the right to conduct water to the tanks through the pipes on the land to be sold. The question here is what spring was so intended to be reserved. Defendant then gave to Mr. Tourny