McIntyre v. Consolidated Water Co.

TYLER, J.,

pro tem

.

Plaintiff Samuel D. McIntyre and some sixty-eight others have joined as plaintiffs to obtain an injunction and declaratory relief concerning certain water rights secured to them by contract. The proceeding is brought under section 1060 et seq. of the Code of Civil Procedure. That section provides, in substance, that any person interested under a deed, will, or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, in, over, or upon property,' 1 . . may bring an action . . . for a

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declaration of his rights, including a determination of any question of construction or validity arising under such instrument or contract. The complaint alleges, in substance, that on the fourteenth day of September, 1887, one Fred J. Smith and William Everett entered into a certain written agreement by the terms of which Smith agreed to sell and deliver to Everett, and Everett agreed to purchase, a stream of water of continuous and uniform flow of six thousand five hundred gallons every twenty-four hours. The water So purchased was to be obtained from a well to be bored by Smith upon lands owned by him and delivered through pipes to a subdivision of land owned by Everett. The title to said water, together with a proportionate interest in the well, was to pass to Everett upon payment of the purchase price, which the agreement recites was made. A deed was executed by Smith to the waters and the well in conformity with the terms of the agreement. In and by said deed Smith granted and conveyed to Everett the

quantum

of water mentioned, as developed by artesian wells on lands belonging to Smith described as lot 32 of the Loop and Meserve Tract, Rancho San Jose, county of Los Angeles, together with a perpetual right of way through the pipe-line system owned by Smith for carrying the water and also a proportionate interest in the artesian wells as the water conveyed bears to the whole amount flowing from the wells through the pipe-line system. At the time of the conveyance Smith owned the water and the lands on which the well was located. The complaint proceeding alleges that Everett subdivided his lands upon which the water was to be delivered and plotted a subdivision and sold and transferred the various lots to different purchasers. That plaintiffs herein were the successors in title to Everett in said lands and to a portion of the waters and pipe-line as conveyed by Smith to Everett. That during the years 1887 and 1888 Smith conveyed to and contracted with various people, other than Everett, different interests in said water to which certain plaintiffs herein have succeeded. That all of the water, water rights, and interest conveyed by Smith as above set forth were conveyed by way of deeds of grant duly recorded and were and still are appurtenant to certain lands in and adjacent to the city of Pomona. About the year 1897 Smith sold to .the defendant The Consolidated Water Company the well on said lot 32, together with the