Lake Vineyard Land & Water Ass'n v. San Gabriel Orange Grove Ass'n

Sharpstein, J.: W. and G., being the joint owners of a certain tract of land through which the Arroyo Seco runs, executed a deed of partition on the 18th of December, 1873, which contains the following stipulation:

“ Reserving, however, unto the said parties of the first and second parts (said W. and G.) the joint right and ownership in and to all waters of the Tibbet Springs, so called, situated upon tract No. 2 (W.’s tract), last above described; said waters to be developed and taken out at a point at or above the junction of said springs, near where the blue granite-ledge crops out on the eastern bank, distant about two hundred yards up the stream, from a point in the arroyo known as the Devil’s Gate.”

The question which the Court below was called upon to determine, was whether this reservation included a stream of water which runs down on the west side of the arroyo and unites with the waters running on the east side thereof at a [52]point on the west side of said arroyo some distance below said blue granite ledge. The Court found that it did not, and the appellants insist that that finding is not supported by the evidence. There is little or no conflict of evidence as to the location of the blue granite ledge, or as to what waters unite near where it crops out on the east bank of the arroyo; and it appears from a map, introduced by the appellants, that the waters in controversy do not unite with the waters running on the east side of said arroyo at a point near where said blue granite ledge crops out on the east bank; but, as before stated, do unite at a point much nearer where said blue granite ledge crops out on the west bank of said arroyo.

Several witnesses testified that two streams did unite on the east side of the arroyo near the blue granite ledge, neither of which is the stream in dispute. It seems to us quite clear that the appellants must be restricted to such waters as unite near where said blue granite ledge crops out on the east bank. And there is sufficient evidence to justify the finding of the Court that the water running on the west side of the arroyo did not unite with the waters running on the east side of it at a point near where the blue granite ledge crops out on the east bank of the arroyo.

Had it been the intention of the parties to reserve all the waters of the arroyo, to be developed and taken out at a point near where the blue granite ledge crops out, it could have been expressed in those very words. The reference to the junction, near the blue granite ledge, on the eastern bank, two hundred yards above Devil’s Gate, would in that view of the matter be surplusage. The junction of the two streams on the east side of the arroyo is, according to the evidence of some of the witnesses, about two hundred yards above the Devil’s Gate. The junction of all the waters of the arroyo, as before stated, is on the west side, and much less than two hundred yards above the Devil’s Gate, and much nearer where the blue granite ledge crops out on the western bank, than to where it crops out on the eastern bank of the arroyo. We think that this construction satisfies all the calls of the deed, while the one contended for by appellants would discard many of them.