Oliver v. Agasse

VAN DYKE,J.

—This action was brought to have the defendant move off a pipe-line which he had laid in an old ditch extending across the mining claim belonging to plaintiff. The Tuolumne County Water Company for many years past has been the owner of the water-ditch crossing said plaintiff’s mining claim, conveying water therein for sale for mining and irrigation purposes. Defendant is the owner of a tract of agricultural land adjoining said mining claim, and has been for many years purchasing water from the Tuolumne County Water Company, and during said time conveying the same from the ditch of the Tuolumne County Water Company across plaintiff’s mining claim, by means of a ditch, to defendant’s land and premises. On September 13,1898, defendant entered upon plaintiff’s mining claim, and laid a pipe-line from the said company’s ditch, along and in said defendant’s ditch, across plaintiff’s land, to his (defendant’s) land and premises. A patent to plaintiff’s mining claim was issued by the United States, July 1,1898, which was subject to defendant’s easement, as provided by section 2340 of the Revised Statutes, as follows: “All patents granted or pre-emptions or homesteads allowed shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.”

The court below gave judgment for the plaintiff, and the appeal is taken from said judgment and from an order denying defendant’s motion for a new trial.

In

Allen

v.

San José Land etc. Co.,

92 Cal. 138, the question, as stated by the court in its opinion, was, whether an easement to run water over plaintiff’s land in an open ditch is satisfied by carrying the water in a closed pipe laid on the bottom of such ditch and then covered, provided that the change in the easement would benefit the servient estate and convenience the dominant estate, and it is said: “After a careful examination of many authorities, we are led to conclude that the allegation of the answer, 1 that the alteration in the mode and manner of using the easement will be less burden

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