Zimmler v. San Luis Water Co.

SlIARPSTEIN, J.: This action is brought to obtain an injunction to restrain the defendant from diverting the waters of a stream known as the “ Arroyo de San Luis Obispo ” from its natural course through lands belonging to plaintiff’s intestate. The Court granted an injunction as prayed, and the defendant moved for a new trial. [222]which was denied, and from that order and the judgment this appeal is taken.

It appears by the record that the plaintiff’s intestate was the owner of a tract of land which required irrigation, and that some of the waters of the above-named creek which flowed through the premises were used for that purpose. In April, 1877, less than two months before the commencement of this action, the defendant diverted the waters of said creek from said premises, and deprived the plaintiff of the water which she had been using, and which was necessary for the irrigation of said land. As an administrator of a riparian owner, the plaintiff is entitled to the relief prayed and granted, unless the defendant had acquired a paramount right to all the waters of said creek. And it claims, that, by virtue of a deed executed by plaintiff’s intestate on the 17th of July, 1877, it required that right. That deed, after stating the name of the parties to it, proceeds as follows :

“ That, whereas, the said parties of the second part (the defendant) are about to divert the waters of the San Luis Obispo Creek, and to appropriate the same for the purpose of supplying the city of San Luis Obispo with water, and are desirous of conveying the said waters in a pipe covered in the ground across the lands of the party of the first part (the plaintiff’s intestate).

“ Now, therefore, * * * in consideration, * * * the said party of the first part does hereby grant to the party of the second part, and its assigns forever, the right to convey water in iron pipes over and g,cross the lands of the said party of the first part.”

There is no direct grant of any water, or of the right to divert it. No positive or plain reference to the waters of San Luis Obispo Creek is contained in the granting clause; and the defendant relies upon the recital in which a reference to the waters of that creek is contained, as a conclusive admission by the plaintiff’s intestate in her deed, of the right of the defendant to divert all the waters of said creek from her premises.

If the plaintiff’s intestate, by way of recital or otherwise in her deed, had admitted the right of the defendant to divert said waters, she would doubtless be estopped from denying it in this £>