Riverside Land & Irrigation Co. v. Jensen

Appeal from a judgment of the Superior Court of San Bernardino County, and from an order refusing a new trial.

The action was brought under section 738 of the Code of Civil Procedure, against one Cornelius Jensen, to quiet title to certain land. In the second amended complaint, under which the action was tried, the plaintiff alleged that it was the owner of a certain tract of land, and that the defendant claims an interest therein adverse to the plaintiff, but that the claim of the defendant is without right. The defendant, in his answer to the second amended complaint, claimed that he was the owner of the right of way for a water ditch, to conduct water from Spring Brook, on the plaintiff’s lands, on to certain portions of his own land, known as lots 25 and 17, and that he was the owner of two thirds of the waters flowing out of said brook, which he conducts through the ditch to and upon his land for purposes of irrigation. The answer contained further allegations, the purport of which was, that while the plaintiff owned the land that it claims, and the defendant owned the lots 25 and 17, and while the ditch was in existence, and waters flowing therein, across the defendant’s lot No. 25, to the defendant’s lot No. 17, the plaintiff, on the 1st of July, 1879, quitclaimed and conveyed to the defendant the lot No. 17, which conveyance carried the ditch and water as appurtenant to the land conveyed.

The original complaint was filed on the 6th of December, 1881, and was substantially the same as the second amended complaint, on which the action was tried. The defendant answered the original complaint, and on the trial, by consent of the parties and leave of the court, the plaintiff filed an amended complaint. The first amended complaint sets out an original ownership in common by plaintiff and defendant of certain lands, including all that claimed by the plaintiff in the original complaint, and the lot No. 25 of the defendant; a partition thereof, whereby the plaintiff took its said portion and the defendant lot 25; that thereafter the defendant acquired lot 17; that defendant, without any right, entered upon that part apportioned to the plaintiff, and constructed a ditch, whereby the waters of Spring Brook, on the plaintiff’s land, were diverted therefrom to and upon the defendant’s lots 25 and 17; that thereafter, on the 1st of July, 1879, the plaintiff executed to the defendant a quitclaim deed for lot 17, but that through the oversight, inadvertence, and mistake of both parties to the deed, no reservation was made therein concerning any right of the defendant to the waters of the said Spring Brook, or of said water ditch, or right of way for the same. The prayer was, that the defendant have no right of way over the plaintiff’s land for the ditch, or any right to divert the waters of the brook. To this first amended complaint, the defendant answered, denying any oversight, inadvertence, or mistake in executing the deed of July 1,1879, or that any reservation was omitted therefrom. Afterwards, the case came on for trial upon the first amended complaint, and the answer thereto. On the trial, the plaintiff offered to prove that the water and ditch were not appurtenant to lot 17 when the deed of July 1, 1879, was executed, and that the deed did not convey any right to the water, or right of way for the ditch. On objection by the defendant, this evidence was excluded. The plaintiff then asked and obtained leave to file a second amended complaint, which it did. The second amended complaint was the same, in substance, as the original complaint. Judgment was rendered in favor of the plaintiff. The further facts are stated in the opinion.