Winslow v. City of Vallejo

SLOSS, J.

The defendant, the city of Vallejo, appeals from a judgment enjoining it from entering upon certain land belonging to the plaintiff and laying thereon a fourteen-inch pipe, or from entering for any purpose except that of inspecting, repairing, or renewing the water-main already laid across said land.

[724]

The findings, which are not attacked, show the following facts: The city of Vallejo has for some years owned and operated a water system for the purpose of supplying the city and its inhabitants with water. The water is impounded in a reservoir situated in Solano County and is thence conveyed through a ten-inch iron main pipe line to the city of Vallejo, a distance of about fourteen miles. The pipe line was laid about nine years before the commencement of this action, and in its course passes through the lands of various property-owners, including the plaintiff. By reason of the growth of the city, the ten-inch main has become inadequate for the needs of the inhabitants, and the city has undertaken to lay an additional' pipe, fourteen inches in diameter, which it is about to run across the plaintiff’s lands, within three feet of the ten-inch pipe line. While an express finding as to damage is not, in our view, important, it may be proper to say that the trial court finds that the laying of the new main will damage plaintiff’s orchard and a crop growing on the land. The ten-inch main was laid under a grant of a right of way, dated June 15, 1893, from the then owners of the land to the defendant, and inasmuch as no compensation for any further or other right was paid by the city, the question is whether the conveyance or grant of 1893, taken m connection with the facts above stated, gave to the defendant the right to run a fourteen-inch main through the lands of the plaintiff, over a route outside of and in addition to that occupied by the ten-inch line. The instrument in question, after reciting a consideration of one dollar and the furnishing of water by the city to the owners of the land, to the extent of not more than one thousand gallons per month, grants and conveys to the city a right of way over the land described as follows: “Being the right of way on, in, through and over the land of the parties of the first part hereinafter described for any water-pipes or mains which may be laid by the city of Vallejo, the party of the second part, and the right to maintain such water-pipes and mains, provided that all water-pipes and mains shall be laid so that not less than one and one half feet of ground shall cover such water-pipes and mains, and that in no case shall the said water-pipes or mains interfere with the proper cultivation of the lands of the parties of the first part, and