Fresno Milling Co. v. Fresno Canal & Irrigation Co.

HENSHAW, J.

—Plaintiff, as its name implies, is a milling corporation, engaged in the manufacture of flour in the city of Fresno. Defendant is a corporation, engaged in the distribution and sale of water under the laws of the state. Plaintiff sued to recover damages for the breach of two certain contracts for the sale of water, made by defendant with plaintiff’s predecessors in interest. Appellant contends that the right to the water

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was appurtenant to the millsite, and passed to it by mesne conveyances from the original contracting parties. By the first of these contracts the defendant agreed, under certain limitations and restrictions, to furnish sufficient water to “carry three runs of stones.” By the second contract,, made with one Deming and by Deming assigned to the plaintiff, the defendant under similar limitations and restrictions sold “all the water that may be required, not exceeding at any time eighty-three and one-third cubic feet per second, to be supplied by and through the canal known as the Mill ditch on Fresno street, in the town of Fresno, county of Fresno, state of California.” It is insisted by appellant that under these contracts it is entitled to eighty-three and one-third cubic feet of water per second, and so much more as might be necessary to carry three runs of stones, estimated to he about fifty-two cubic feet of water per second. By respondent it is maintained that the later agreement for eighty-three and one-third cubic feet provided for all the water to which, under any circumstances, the plaintiff was entitled. Eegardless of the determination of the trial court upon this matter, we think its consideration unnecessary here, for the terms of the two contracts upon the question hereinafter to be considered are well-nigh identical. Plaintiff does not seek to have the water which the defendant for a long time admittedly has ceased to supply to the mill restored, but asks merely for damages for its failure to supply the water down to a given date. If, under the facts and under the terms of the contracts, plaintiff is not entitled to damages, the quantum of water ceases to be an important consideration.

Under the evidence, it appears that the defendant contracted to supply the water from an open canal constructed in part upon a county highway and in part upon a public street of the city of Fresno; that in October, 1891, the road overseer of the county, acting under direction of the supervisors, went with men, teams, plows, and scrapers and filled in the canal upon the county highway, and leveled the road to its grade. Thereafter, that portion of the canal within the city was like «úse filled and its character as a canal destroyed. Cross-actions for injunctions were brought by the canal company.to restrain the overseer from destroying its canal, by the road overseer to re