Harrison v. Chaboya

RICHARDS, J.

This is an appeal from a judgment of the superior court of the county of Contra Costa in favor of the plaintiffs and against the defendants in an action brought by the former to quiet their title to a certain easement claimed by them to exist in certain waters which take their rise upon the land now owned by the defendants herein and which are thence conducted by said plaintiffs to the premises owned by them and known as the Harrison place, lying near the town of Danville, in said county of Contra Costa. Plaintiffs derived their ownership of their said property from their mother, Isabella Harrison, who had obtained title thereto in about the year 1887 and who not long thereafter acquired by deed from one William Hemme a conveyance to all of the waters issuing from a certain spring located upon the land now owned by the defendants herein,

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but of which land said William Hemme had originally been the owner, and the title to which land had descended by mesne conveyances to the defendants herein, who had acquired the same by purchase from the then owners thereof in August, 1922. Shortly thereafter a controversy arose between said defendants and the plaintiffs herein as to the extent and definition of the easement which is the subject of the present litigation. By the terms of the aforesaid conveyance from William Hemme to Isabella Harrison of the easement in question the said Hemme undertook to convey “all of that certain spring and water flowing therefrom, situate, lying and being in the county of Contra Costa, State of California, and particularly described as follows, to wit: ‘All the water issuing from our spring, which spring is located on the west end of a certain tract of land, ’

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describing the land now owned by the defendants herein. At the time of and apparently for some considerable time prior to the date of said conveyance there had been constructed and maintained at the place where the waters referred to therein took their rise a wooden box four feet square at the foot of an alder tree, which was apparently within the area of a boggy or marshy place where an amount of water which underlay and percolated through the larger tract upon which the same was situated came to the surface thereof, occupying an area upon the point of their exudation about forty feet square. The box referred to had been sunk within this damp or marshy area with a view apparently to collect the waters which arose therein, and in order to aid in such collection wooden troughs or drains had been constructed leading into this central receptacle and out of which, by piping, the waters thus assembled were conveyed to the Harrison place. About twenty-six years before the inception of the present litigation the Harrisons, in order to augment the flow of water into this earlier receptacle, which is described in the record as “Box A” or “Spring A,” had installed another wooden box about two feet square at a point lying about forty feet southeasterly from said Box A and had led the waters collected therein by means of an iron pipe into Box A. This later installed receptacle is described as “Box B” or “Spring B,” and it is in reference to the right of the plaintiffs thereto and to the waters collected therein that the present litigation arose. It was the contention of the respondents herein that the waters collected in