Fresno Canal & Irrigation Co. v. Perrin

SHAW, J.

The plaintiff appeals from a judgment in favor of the defendants and also from an order denying its motion for a new trial. The judgment further provided that the defendant Lilo M. Perrin should recover of plaintiff the sum of five hundred dollars.

The plaintiff’s complaint contained four counts for the recovery of annual payments, amounting in the aggregate to $3,193.75, upon four separate water-right contracts executed by the plaintiff, all dated February 19, 1897, in each of which plaintiff agreed to furnish water from its canal for the irrigation of certain tracts of land belonging to the defendant Lilo M. Perrin, from the date thereof until February 16, 1921. Each contract provided that the annual payments due thereon for water furnished should constitute a lien upon the land. They were of the same form as the contracts which were held to create a lien upon the land by the decisions in

Fresno Canal and Irrigation Co.

v.

Rowell,

80 Cal. 114, [13 Am. St. Rep. 112, 22 Pac. 53], and

Fresno Canal and Irrigation Co.

v.

Dunbar,

80 Cal. 530, [22 Pac. 275]. The complaint asked for a foreclosure of this lien and the sale of the respective tracts of land to satisfy the amoxmts due. The answer admitted that the defendants had not made the annual payments sued for. The defense was that the plaintiff had not performed the covenants required to be performed by it, and that, in consequence of plaintiff’s failure, there was no sum of money due or payable by the defendants to the plaintiff under said contracts.

The defendants also filed a cross-complaint alleging that Lilo M. Perrin was the owner of the lands in controversy, that there were certain water-right agreements attached to said lands as appurtenances thereto, whereby the plaintiff had agreed to furnish for said land all water that might be required for the irrigation thereof, that without the use of water the lands were worthless for the purpose of raising crops thereon, that the plaintiff, although requested so to do, had failed and refused to furnish any water for or upon said lands

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