Cave v. Crafts

California Supreme Court Jul 1, 1878 No. No. 5743Published

Before: McKinstry

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Holding. The court held that prior water appropriation rights and easements created by the severance of land ownership are binding on subsequent purchasers, and that adverse use claims fail where the use was not peaceable or continuous.

Issues

Whether a prior decree in Folks v. Crafts precludes the appellant's current claims to water rights.
Whether the appellant acquired water rights through adverse use.
Whether water rights and easements pass as appurtenances upon the severance and sale of a portion of an estate.
Whether the complaint sufficiently supports a decree based on the existence of an easement.

Disposition. affirmed

Quotations verified verbatim against the opinion

“All the rights of Crafts in the waters - of the stream, as they existed when the suit of Folks v. Crafts was brought, were necessarily settled by the decree in that case, since they were, or could have been, there asserted.”

“The use of water upon those places—as the case clearly shows—was not peaceable, as that term is applied in connection with the subject we are considering, but was disputed and not infrequently interrupted by plaintiffs and their grantors.”

Synopsis

Plea of Former Judgment.—A party, in order to avail liimself of a former judgment as a defense to a new action, must plead the former judg- - ment.

Adverse Use must be Peaceable.—An adverse use must he open and as of right, and also peaceable; for if there is any act done by the other owners that operates as an interruption, however slight, it prevents the acquisition of the right by such use.

Water Rights Confirmed by Congress.—The Act of Congress of July 26th, 1866, “ granting the right of way to ditch and canal owners over the public lands,” conferred rights to waters appropriated for agricultural purposes, and operates to confirm such rights, initiated and maintained prior to the passage of the Act.

Grant of Basements.—When the owner of lands divides his property into two parts, granting away one of them, he is taken by implication to include in his grant all such easements in the remaining part as are necessary for the reasonable enjoyment of the part which he grants, in the form which it assumes at the time he transfers it. The purchaser is entitled to the benefit of the easement without any express grant or reservation.

General Rule of Grant.—The general rule of law is that when a party grants a thing, he by implication grants whatever is incident to it and necessary to its beneficial enjoyment.

Definition of Easement.—An easement to real estate granted is a privilege off and beyond the local boundaries of the lands or tenement conveyed. Trespass to an Easement.—The averment of an easement will support an action for trespass. »

Practice on Appeal.—Where a case has been tried upon the assumption that all the material allegations of the complaint were denied by the answer, the parties cannot question the sufficiency of a denial upon appeal.

By the Court, McKinstry, J.: There can he no doubt that the appellant Crafts is bound by the decree in Folks v. Crafts, so far as is concerned any claim on his part to the use of waters by reason of his one-sixth interest in the Carpenter ranch. Even if the same subject-matter were involved in the prior action of Crafts v. McCoy, the judgment in the prior action was not pleaded as a former determination in Folks v. Crafts. But the issue was different. In Folks v. Crafts the question was, what were the rights of the parties with respect to the use of certain waters when that action was commenced. Crafts v. McCoy had been finally adjudged before Crafts acquired his one-sixth interest in the [138]Carpenter ranch; and Crafts acquired the one-sixth interest prior to the commencement of the action of Folks v. Crafts. All the rights of Crafts in the waters - of the stream, as they existed when the suit of Folks v. Crafts was brought, were necessarily settled by the decree in that case, since they were, or could have been, there asserted.

Appellant Crafts claims the right to continue the use of water on the “ See ” and “ Criswell ” places by reason of adverse use for more than five years. It is enough to say that the use of water upon those places—as the case clearly shows—was not peaceable, as that term is applied in connection with the subject we are considering, but was disputed and not infrequently interrupted by plaintiffs and their grantors. “The use,” says Wood in his Law of Nuisances, “ must also be open, and as of right, and also peaceable; for if there is any act done by other owners that operates as an interruption, however slight, it prevents the acquisition of the right by such use.” (9 Cowan, 162; 1 Mees. & W. 100; 3 Nev. & P. 257.)

Appellant Crafts further claims that he is entitled to the use of water not allowed him by the decree of the District Court, as riparian proprietor, by virtue of his ownership of the “ See ” and “ Criswell ” tracts. His right to these two places was deraigned at the trial from McDonald and Meacham, who had acquired title thereto as pre-emptioners and purchasers from the United States. The purchase from the Government of the “See” place was consummated December 3rd, 1870, that of the “ Criswell ” tract on the 27th day of February, 1873. The Court below found that the zanja—the waters of which are in dispute—was an artificial conduit through which the waters óf the natural stream had been appropriated by plaintiffs and their grantors long prior to the purchase from the Government of the “ See ” and “ Criswell ” tracts. The rights thus initiated and maintained by appropriation were confirmed by the Act of Congress “ granting the right of way to ditch and canal-owners over the public lands.” That act, passed July 26th, 1866, conferred rights to waters appropriated for agricultural purposes. (Basey v. Gallagher, 20 Wall. 670.)

Cave v. Crafts

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