Cross v. Kitts

California Supreme Court Mar 30, 1886 No. No. 9544Published

Before: McKee

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Holding. The court held that a water right acquired by express grant from the owner of the soil, which forms a defined stream, constitutes a property right that cannot be divested by a subsequent owner of the land. The right to such water passes as an incident to the property it serves through mesne conveyances.

Issues

Whether a water right acquired by express grant from the owner of the soil is a property right that survives a subsequent transfer of the land.
Whether water that percolates but collects into a defined stream is subject to the same legal protections as a surface watercourse.

Disposition. reversed

Quotations verified verbatim against the opinion

“The right in and the right of receiving the water (Civil Code, sec. 810) passed by the deed of Gillespie in 1864 to A. D. Rich”

“The right to the water from the McCormick tunnel therefore passed as an incident to the Half-mile House property.”

“where percolating waters collect or are gathered in a stream running in a defined channel, no distinction exists between waters so running under the surface or upon the surface of land.”

Synopsis

Easement—Transfer of — Conveyance of Dominant Tenement.—A transfer of real property passes all easements attached thereto, and creates in favor of such property an easement to use other real property of the vendor in the same manner and to the same extent as the latter was obviously and permanently used by the vendor for the benefit of the former at the time the transfer was agreed upon or completed.

Id.—Percolating Waters—Rights in how Acquired.—Percolating waters collected or gathered in a stream running in a defined channel constitute property, or incidents of property, which may be acquired by grant, express or implied, or by appropriation; and when rights in such percolating waters are acquired, the owner cannot be divested thereof by the wrongful acts of another.

McKee, J. This is an appeal from a judgment in favor of the defendant in an action brought by the plaintiff to quiet title to a water right described in the complaint, and to enjoin the defendant from asserting any title to the water, adverse to the plaintiff.

The judgment was entered upon a decision given in writing, and filed under sections 632 and 633, Code of Civil Procedure. On this appeal from the judgment the plaintiff in the action contends that he was entitled to judgment upon the decision, and that is the question.

According to the decision, J. Q. Gillespie was formerly the owner and in possession of a gravel claim, known as the “ Gillespie claim,” which adjoined a gravel claim, known as the “ Shanghai claim,” situated at the head of Gold Flat, in Nevada County. The Gillespie claim was excavated by a tunnel two hundred feet long, known as the McCormick tunnel, the ground at the entrance of which had caved so that “ no water, perceptible upon the surface, issued out of it”; and Gillespie, at or near to its entrance, made an open cut, from the front, bottom, and sides of which water percolated and collected “ in such quantity as to form a running and defined stream of about two inches, miner’s measure.” This water came from near the inner end of the tunnel, on or near the dividing line between the Gillespie and the Shanghai claims, and “ where the bed-rock pitched down into a low channel or basin.”

That was the condition of the Gillespie claim in the year 1864, when Gillespie, being in possession as owner, [219]sold, and by deed transferred, to one A. D. Rich, the right to the water issuing from the tunnel in the claim, by the following description:—

“ That certain spring of water now issuing from the head of an open cut run by said Gillespie in the diggings of said Gillespie. Said diggings being at the head of Gold Flat in Nevada township, Nevada County, state of California, and adjoining the Shanghai diggings on the west, and all waters now issuing or to issue from said spring, with the right and privilege to run another and deeper cut, or a tunnel, or cut and tunnel to said spring, over and through the said diggings of Gillespie, and a right of way and easement to construct said cut or tunnel, and divert, manage, and control said water, and make repairs, lay pipes and boxes, and convey and direct said water. The point from which said cut or tunnel is to be run to be the point on Gillespie’s diggings where the northwest corner of the said Shanghai diggings touches the diggings of said Gillespie.”

Cross v. Kitts

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