Swift v. Goodrich (1886) · DecisionDepot

Swift v. Goodrich

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jun 30, 1886 No. No. 11529Published

Before: McKinstry, Myrick

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Holding. The court held that a contract granting the use of water does not create a landlord-tenant relationship, and therefore, the doctrine of tenant estoppel does not prevent a riparian proprietor from asserting their natural water rights after the expiration of such an agreement.

Issues

Whether a contract for the use of water creates a landlord-tenant relationship that triggers the doctrine of tenant estoppel.
Whether a riparian proprietor is estopped from asserting their water rights after the expiration of a lease agreement regarding the use of that water.

Disposition. reversed

Quotations verified verbatim against the opinion

“Though contracts with respect to incorporeal hereditaments may be good as ' contracts, they do not create the relation of landlord and tenant.”

“The definition of an easement excludes the idea of its being held as a tenancy.”

“The demurrer to the complaint should have been sustained.”

Synopsis

Riparian Proprietors—Use of Waters of Stream—Lease—Estoppel. ■ — An upper riparian proprietor who enters into an agreement, purporting to be a lease, with a lower proprietor, whereby the latter grants to him for a certain term the right to the use of the waters of the adjoining stream for domestic purposes and irrigation, is not, upon the expiration of the agreement, estopped from asserting his right as a riparian proprietor to the use of the water of the stream.

Opinion — McKinstry

McKinstry, J. The complaint was demurred to on the ground that it did not state a cause of action.

The complaint avers that the plaintiffs and defendants are riparian proprietors,—the lands of defendants lying above those of the plaintiffs, on Bush Creek. And further avers that on the fourth day of March, 1874, Jarvis Swift (predecessor in interest of plaintiffs) and B. T. Dinsmore (grantor of defendants) executed a certain instrument in words and figures as follows:—

“This indenture of lease made and entered into this fourth day of March, A. D. 1874, between Jarvis Swift, the party of the first part, and B. T. Dinsmore, the party of the second part, both residents of Montecito, in the county of Santa Barbara, state of California,-witnesseth: That the said party of the first part hereby grants to the party of the second part the right and privilege to the [104]free use of the water of a certain stream running near the house of said Dinsmore, known as Bush Creek, for all the necessary purposes of his house use, and the same to be taken from said stream where it is now taken, and then to be turned back into the. stream at a point immediately below where the party of the second part now obtains water for family and house use, and the party of the first part further agrees that the party of the second part shall have the use of the water for irrigation to the same amount now required as often as it shall be necessary, and without waste or injury to the party of the first part, and after the water has been so used, to be turned back again into the stream at the same point heretofore mentioned; and the said party of the second part agrees and binds himself to not use the water so taken from said stream for any other purposes than those agreed upon by this lease, and in such a manner as to avoid the least waste, and after using the water for irrigation, to turn it back into the stream at the point above mentioned, and that he will use all reasonable efforts to keep the water confined in the place where said water is to be returned into the stream, and for the privileges hereby granted by this lease, the party of the second part agrees to pay to the party of the first part one dollar per year for the period of ten years; this lease shall be for the term of ten years from this date.

“Jarvis Swift.

Swift v. Goodrich

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Synopsis

Opinion — McKinstry

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Concurrence — Myrick

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