Farmer v. Ukiah Water Co.

Sharpstein, J.: The record in this case discloses that in 1872 the defendant by deed conveyed so much of the water belonging to it as could be conveyed through a pipe one-half inch in diameter to Lamar, with the right to draw the same from the main pipes, aqueducts, or reservoirs, of the defendant, by means of a pipe not more than one-half inch in diameter, for the purpose of supplying Lamar with water, he having the privilege of tapping with his pipe the defendant’s pipe, aqueduct, or reservoir, at such point as he might select. And said Lamar was expressly granted the privilege of alienating said right. Lamar owned about four acres of land, with a dwelling-house and other buildings thereon, and he brought the water conveyed to him by the defendant upon said premises, and used it for domestic purposes. And in order to utilize it, he constructed a tank, cistern, and bath-room in the house, which was supplied with said water. He also used it in irrigating his garden and grounds. The [13]water was necessary for the enjoyment and use of the premises in the way that Lamar used them when he transferred them to his grantee. In 1877, Lamar, by deed, conveyed the premises, with the appurtenances belonging thereto, to Bell, from whom, through mesne conveyance, plaintiff deraigns title.

Lamar has since conveyed said water-right to Todd, by virtue of which the defendant claims the right to deprive, and has deprived, the plaintiff of said water.

This action is brought to have the respective rights of the plaintiff and defendant to said water determined, and to have the defendant enjoined from interfering with it.

The Court found that the defendant was entitled to the water, and judgment was entered in its favor. From that judgment, and an order denying the plaintiff’s motion for a new trial, this appeal is taken.

The only question which we have to consider is, whether the right to the water which defendant conveyed to Lamar passed by his deed to Bell. If it was appurtenant to the land at the date of that deed, it doubtless passed with the land to Lamar’s grantee. The following definition of an appurtenance is contained in § 662 of the Civil Code: “ A thing is deemed to be incidental or appurtenant to land, when it is by right used with the land for its benefit; as in the case of a way, or water-course, or of a passage for light, air, or heat, from across the land of another. ”

In this case the water-course is an artificial one, otherwise there would be no room for doubt as to its falling within the foregoing definition. Water-courses have long been designated by the courts and text-writers as natural and artificial, and when neither is specifically mentioned, it might very reasonably be held that either was meant. That the water in controversy was “ by right used with the land for its benefit ” is conceded. But it is contended by the respondent that this water-right is neither an easement nor a covenant real, and that, therefore, it did not pass with the premises as appurtenant thereto. “ The right of having water flow without diminution or disturbance of any kind” is called an easement by § 801 of the Civil Code. Lamar had acquired the right to have a certain volume of water flow upon his premises, and no one had a right to diminish or disturb