Booth v. Chapman

Sharpstein, J.: Conceding that the evidence is sufficient to support the finding of the Court “that the defendant wholly failed to deliver .to the plaintiff, upon said lot, the water appurtenant and belonging to said lot 35, or any part thereof, until about the 20th day of March, 1877, by means of which the plaintiff was deprived of the use of .said water, and was prevented from cultivating and producing a crop of any kind upon said lot during the year 1876, and thereby lost all the profits, gain, and income which he could have derived from said lot during that year if the defendant had delivered said water ac[151]cording to said contract, and plaintiff was thereby damaged ha the sum of five hundred dollars; that the defendant further failed, neglected, and refused to deliver water to plaintiff upon said lot at various and sundry times during the summer of 1877 up to the first day of August of that year, whereby the plaintiff was further damaged in the sum of one hundred dollars;” the right of the plaintiff to recover the damages specified from the defendant depends upon the question whether the defendant ever agreed to supply the plaintiff with water sufficient to irrigate said land.

The defendant agreed to sell to the plaintiff twenty acres of land “with the water right appurtenant to said land; said water right being the pro rata share belonging to said lot of the water right for said six sections of land purchased by said Chapman from the Fresno Canal and Irrigation Company (a corporation incorporated under the laws of the State of California), and entitling the owner of said twenty-acre lot to sufficient water from the canal of said corporation for its irrigation at all necessary times, and for the domestic uses of its occupants, and the watering of the cattle kept thereon, not exceeding at any time one eighth of one cubic foot of water per second.”

The Court did not find that there was not such a water-right appurtenant to said land, or that the defendant did not transfer it to the plaintiff. But it did find that the defendant agreed to deliver the water-right appurtenant to said land, and failed to do so.

The contract was delievered to the plaintiff, and by virtue of it he took and still retains possession of the land, and as we construe the contract he became thereby invested with the water-right appurtenant to the land. If so, he must look to the corporation which controls the water for the pro rata share belonging to said lot. It does not anywhere appear in the record that the defendant ever agreed to deliver any water to the plaintiff; and the Court did not so find. If there is any evidence that the water-right appurtenant to the land was not delivered to the plaintiff, it has entirely escaped our observation. Therefore, the finding that it was not delivered is not supported by the evidence. Besides, it was stipulated in said agreement that the plaintiff should pay for