Weill v. Baldwin

Myrick, J. This controversy is as to the right of the plaintiff to go upon the land of Baldwin and construct and use a ditch to convey water from a reservoir located on Baldwin’s land to and upon the land of plaintiff, for use thereon.

The two ranchos, the Santa Anita and . the Duarte, are separated by the Saw Pit Canon stream, the Santa Anita on the west and the Duarte on the east. At the date of the two instruments first herein referred to, plaintiff (Weill) was the owner of the Duarte, and Wolfskill, (Baldwin’s predecessor), was the OAvner of the Santa Anita. On the 30th of October, 1869, Wolfskill and Weill executed an instrument, reciting the ownership by them respectively of the ranchos, that the stream ran betAveen the íavo ranchos, coinciding generally with the boundary line, and that they had agreed to use the waters of the stream in common for the purpose of irrigating the ranchos, and for such other purposes as they may desire respectively, each to have an undivided one half interest in the use of the said waters, and the parties mutually granted each to the other an undivided one half of the right, title, and interest of each respectively to the water of the said Saw Pit Canon, to have and to hold by the said parties respectively and their heirs and assigns forever. This instrument was acknowledged and recorded.

On the 3d of January, 1870, the same parties made another instrument, reciting that, whereas Wolfskill had, at his own cost, constructed a ditch and aqueduct to conduct the water of the stream to a point on the Santa Anita, and that it was intended and agreed that the parties Avere and should be equally interested in the ditch and aqueduct and in the use of the AA'ater in the arroyo and ditch, therefore, in consideration thereof, and of the payment of eight hundred and twenty-five dollars, paid [478]by Weill to Wolfskill, being tlie proper proportion of the cost of the ditch, the said Wolfskill granted, bargained, and sold to Weill the undivided one half of the ditch and the use thereof from the point where it received the water to the point where it emptied, or should empty, its contents into the reservoir selected for that purpose on the Santa Anita,- together with the equal use and enjoyment of the same and of the water thereof, inclusive of the equal right of way throughout the course of the ditch for all purposes of use and repair, to an equal extent with said Wolfskill, and no further; and it was in said instrument agreed that at a point in the Santa Anita a reservoir should be constructed to receive the water of the ditch, from which it should be distributed for the equal benefit of both parties, the expense of constructing the reservoir to be equally divided between the parties; and for said consideration, Wolfskill granted, bargained, and sold to Weill the right to construct not more than two ditches leading from the reservoir to and upon the Duarte, for the purpose of distributing to his own use and benefit one half of the water so collected or to be collected in said reservoir, also the right of way over the Santa Anita for the reasonable purpose of constructing and repairing said ditches and using and enjoying the said half of the water of the reservoir. And it was agreed that each did convey to the other such interests and rights that each was and should be equally interested in the use of the waters of the arroyo and the reservoir, and the ditch leading into the reservoir, and should have and enjoy all the reasonable facilities for the preservation of said rights and privileges. This instrument, also, was acknowledged and recorded.