Tarpey v. Lynch

HENSHAW, J.

This is an action for an injunction to restrain defendant from interfering with plaintiffs use of a ditch extending over defendant’s lands and used by plaintiff to convey water for the irrigation of his own lands. Plaintiff had judgment and defendant appeals.

Plaintiff’s land is the northwesterly ten acres of section 28. By government subdivisions it is the northwest quarter of the northwest quarter of the northwest quarter of section 28. It is a segregated part of the westerly half of the northwest quarter of this section. This eighty acres, comprising the

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westerly half of the northwest quarter was owned by H. S. Crocker. He purchased from the Fresno Canal and Irrigation Company water and a water-right for use upon this land, and by the terms of the deed this water-right became appurtenant to the land. Subsequently Crocker conveyed his eighty acres to Lynch, defendant herein, “together with the water-right and water supply for said land, etc.” While so owning this eighty acres, Lynch, in April, 1903, conveyed to plaintiff the ten acres above described, “together with the appurtenances, and particularly a one-eighth interest in the water-right which is appurtenant to the west one half of the northwest quarter of said section 28.” Some years prior to the purchase by plaintiff, there was in existence a ditch carrying water from the supply of the Fresno Canal and Irrigation Company coming from the east westwardly along the northerly line of section 28 and ending at the northeast corner of the Crocker-Lynch eighty-acre tract. There was a continuation of this ditch for some distance southerly along the easterly-line of the eighty-acre tract, and water had been distributed over the eighty-acre tract from this ditch through temporary channels made by plow furrows. The land sloped downward southerly and westerly. Subsequent to the purchase by plaintiff his ten acres were leased to defendant, and the ditch along tho northerly line of section 28 was still further extended along that line, until it reached the ten acres. The land and ditch were used by defendant under his lease for irrigating rooted vines, which were subsequently transplanted. Thereafter, when plaintiff attempted to use this ditch to irrigate his ten acres, or to extend the ditch from the northeast corner of the Crocker tract over the lands of defendant so as to irrigate his lands, defendant interfered, denying his right to enter upon his land to construct such ditch. This action resulted.