Miller and Lux v. Kern County Etc. Co.

THE COURT.

The appeal is from the judgment and from the order denying defendant’s motion for a new trial. The essential allegations of the complaint are that the copartnership of Miller & Lux, James B. Haggin and others, owned

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lands and conflicting claims to land, and water-rights and conflicting claims to water-rights on Kern River; that in adjustment of the litigation which had sprung up because of their hostile interests, a written agreement was entered into; that one of the purposes to be accomplished by the agreement was the supplying water to all the lands of Miller & Lux; that to this end Buena Vista lake was to be made into a reservoir for the storing of water, and this was done; that an easement was granted in the agreement by James B. Haggin for the reasonable use of his lands for the purpose of taking water to the lands of Miller & Lux. In 1892 James B. Haggin conveyed his lands with all the water-rights appurtenant thereto to the defendant corporation, and, in turn, the plaintiff corporation succeeded to all the rights of Miller & Lux, copartners. The complaint then proceeds, and here we quote

in extenso:

“That in the month of April, 1894, said Henry Miller, acting as surviving partner aforesaid, being desirous of irrigating said four thousand acres of land with water from said lake or reservoir, notified defendant of his intention to locate and construct a gate and canal over and upon the north half of said section thirty for said purpose, whereupon, under its direction, the duly authorized agents of defendant, having-power to act in the premises, accompanied said Henry Miller and his employees, to said reservoir and co-operated and assisted him in laying out the lines, and surveying and locating a canal upon the north half of said section thirty for the purpose of carrying or conducting water from said lake or reservoir to said four thousand acres of land. That thereafter, in May, 1894, said Henry Miller, as such surviving partner, commenced the work of constructing the gate and canal so located and laid out, and continued said work until August, 1894, when said gate and canal were completed; that said canal is nearly one mile in length and the cost and expense of constructing the same and the gate thereto is about three thousand dollars. That defendant knew said work was in progress from the time it was commenced until the completion of said canal and said gate and stood by and made no objection thereto; but, on the contrary, by its acts and conduct, encouraged said Henry Miller, acting as such surviving partner, to proceed with the same and construct said canal and gate. That after the completion thereof, and the gate thereto, said