SHAW, J., Concurring.
I concur in the judgment and in the opinion of Mr. Justice Melvin, but I desire to state some additional reasons why, in my opinion, the judgment should be affirmed.
There was ample evidence to establish the fact that the defendant, East Riverside Water Company, prior to the year 1900, owned and enjoyed the right to receive through the
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canal now maintained by the Gage Canal Company a flow of water amounting to 696.88 miner’s inches, subject to the burden of paying its ratable share of the expenses of operating and maintaining the canal from its beginning at the water sources down to section 30 on the north bank of the Arroyo Tequesquite. This right was derived from grants made by Matthew Gage, the original owner of the water and its sources. These grants described the water which was the subject of the grant as a stated number of “inches of water measured under a four-inch pressure, together with the use thereof,
arising and jiowmg
from the springs, water sources, water rights and artesian wells bored or to be bored, ’ ’ on the parcel of land described and belonging to Gage, or in words of like effect. The right to 367.78 miner’s inches of water under these grants is admitted. It is the remaining 329.1 miner’s inches which the plaintiff seeks to enjoin the defendant from taking. The right to receive this 329.1 inches from the canal so long as it was composed of water “arising and flowing from the springs, water sources, water rights and artesian wells” bored on the described land, has never been seriously disputed. But about the year 1900, fourteen years after the date of the grant, owing to drought and to the apparent lowering of the water plane and of the water pressure in the vicinity of the wells, water, ceased to flow from the artesian wells and none has since flowed therefrom, except such as has been raised and made to flow by means of pumps installed in the wells and maintained and operated by the Gage Canal Company and its predecessors in interest in charge of the canal.
The original grants of Gage contained no agreement or covenant on his "part to keep up the flow of water in the canal by pumping water into it from wells or other sources, in the event that the water ceased to arise and flow naturally from the wells into the canal. ‘The plaintiff herein, as successor to Gage, as I understand its position, although it is not very clearly stated in its briefs, claims that the only water which was the subject of the grant was water naturally arising and flowing from the wells, springs, and other sources; that there was no grant of any water other than that which came to the surface in this way; that plaintiff never has been and is not now under any obligation to obtain water from the wells or elsewhere by means of pumps and conduct such water into the canal to satisfy the grant; that when the water per
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manently ceased to flow from the wells the right which was the subject of the grant became extinguished and that when plaintiff obtained other water by means of pumps or otherwise, either from the wells or elsewhere, it did that which it was not bound to do; that it is under no obligation to continue to pump that water and deliver it to the Water Company, and, consequently, that the Water Company has no right to take from the .canal any part of the water flowing therein so obtained by pumps. The main question thus presented for decision is whether or not, by reason of the language of the grants or otherwise, the plaintiff, as successor of Gage, is bound to maintain the supply of water in the canal necessary to fulfill the grants, even if it is obliged to resort to pumps, or to obtain the water from some other source, in order to do so.
I am unable to find in the language of the grants anything which imposes this obligation upon Gage and his successors in interest. Apparently, the grant was of water naturally flowing, and there is nothing to indicate that the maintenance of the supply by means of pumps or other artificial constructions was intended or contemplated by the parties. If there was no other evidence of the right to insist that the plaintiffs' should produce the water by pumps than these grants, I should be inclined to hold that the judgment was erroneous.
It appears, however, that when the water ceased to flow in the year 1900, the country had reached such a state of development that the continuance of the supply was necessary in order to prevent disaster. In this emergency the Riverside Trust Company, the immediate predecessor of the plaintiff, proceeded to install pumps and maintain the supply of water in the canal by pumping the required amount from the wells from which the water previously had flowed naturally. This water it delivered, as before, to the parties holding rights under the Gage grants. This immediately gave rise to the question whether the parties holding these rights were obliged to contribute to the additional expense of obtaining the water caused by the necessity of pumping. The water users claimed that the Trust Company was bound to maintain the supply, while the Trust Company claimed to the contrary and presented bills to the users, for the due proportion of each, of the expenses of installing and operating the pumps. The East Riverside Canal Company refused to pay these bills, and
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thereupon the Trust Company began an action against it in the United States district court for the southern district of California to recover the ratable share of such expenses which it had charged to said Canal Company, basing its action upon the theory that it was under no obligation to pump the water and that all the parties interested were bound to contribute to the expense thereof. In that action the court decided that the intervention of unusual droughts and the cessation of the natural flow of the water did not relieve the plaintiff from its obligation to supply the water which was to be furnished under the terms of the original grants, and that said grants “import that upon Gage rested the burden of producing the water and causing the same to flow upon the surface, thence to be turned into the canal and delivered continuously and permanently.”
(Riverside Trust Co.
v.
East Riverside Water Co.,
173 Fed. 244, [97 C. C. A. 410].) Judgment was given accordingly in favor of the defendant. This judgment was introduced in evidence to support the claims of the defendant in this action. It was clearly an adjudication to the effect that the Trust Company, as successor to Gage, was obliged to maintain enough water in the canal to satisfy the grants, at least if there was enough in the land comprising the source, and that the' Water Company was entitled to receive the same without contributing anything to the expenses of maintaining and operating the pumps.
This adjudication is binding upon the said Trust Company and upon its successors in interest, including the plaintiff, so far as it decided the true meaning and effect of all the grants under which the defendant holds its water rights in the canal. A judgment of a court having jurisdiction of the parties “operates as an estoppel to preclude the ‘parties or privies from contending to the contrary of that point or matter of fact, which, having been once distinctly put in issue by them, has been, on such issue joined, solemnly found against them.’ ”
(Koehler
v.
Holt Mfg. Co.,
146 Cal. 337, [80 Pac. 74];
Cromwell
v.
County of Sacramento,
94 U. S. 353, [24 L. Ed. 195, see, also, Rose’s U. S.
Notes]; Wiese
v.
San Francisco Musical Soc.,
82 Cal. 645, [7 L. R. A. 577, 23 Pac. 212];
Freeman
v.
Barnum,
131 Cal. 389, [82 Am. St. Rep. 355, 63 Pac. 691].) In the case between the Trust Company and the Water Company in the federal court, the point that the Canal Company was bound to supply enough water to satisfy the
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grants, free of charge for pumping the same, was distinctly put in issue and was adjudged in favor of the Water Com-, pany. The plaintiff as successor of the Trust Company is therefore estopped from ever contending that it -is not obliged by the grant to continue to furnish to the successors of the original grantees the water which it has caused to flow in the canal by pumping the same to the surface. The findings in the case state the ultimate fact that the defendant is entitled to take the water in controversy from the canal and to have the same produced at the surface by whatever means may be adopted by the person charged with the duty of operating 'the canal, free from any charge for the expenses of maintaining or operating pumping plants or other appliances for bringing said water to the surface of the land comprising said water sources. This finding is supported by the judgment given in evidence, and it is sufficient to sustain the judgment denying the injunction.