Fresno Canal & Irrigation Co. v. Dunbar

Water Rights — Sale of Water for Irrigation — Covenant Running with Land — Lien for Price of Water —Purchaser with Notice. — At common law, and under the Civil Code, sections 1460, 1466, a covenant cannot be made to run with the land unless made in connection with and as part of the conveyance or transfer of the land itself; and upon the sale of a water right for the purpose of irrigating land, a covenant that the price thereof shall be paid in annual installments, and that the agreement and covenant to pay the same shall run with and bind the land, does not constitute a covenant running with the land which can impose a personal liability upon a purchaser of the land; but it binds the land so as to create a lien thereupon for the price of the water right, which can be enforced by foreclosure thereof against a purchaser with record notice of the agreement, though no personal judgment can be properly rendered against such purchaser.

Id.—Evidence — Proof of Notice — Secondary Evidence —Record of Lien — Amendment of Code. — A lien for the price of a water right cannot be enforced against the land in the hands of a subsequent purchaser without proof of notice of the existence of the lien. The admission in evidence of the record of a contract creating such lien without proof of the loss of the original, or otherwise accounting for it, was not allowable, prior to the amendment of section 1951 of the Code of Civil Procedure in 1889, and such evidence could not constitute proper proof of notice.

Id. — Construction of Contract — Sale of Water to be Taken bt Vendee.—When a water company agrees to furnish water from its ditch to irrigate the lands of one to whom a water right is sold, and agrees to construct a box or gate at the most convenient point thereon through which to pass the water into a ditch to be constructed by the vendee as provided in the contract, the grantee of the vendee cannot escape the enforcement of a lien upon the land for the price of the water by failing to construct the ditch, and the water company is entitled to recover for the water from the time it was prepared to furnish it at the box or gate constructed by it.

Id.—Evidence — Negligent Construction of Ditch—Pleading.—In an action for the price of water furnished, if it appears that the water sold was supplied at the place agreed upon, an offer of defendant to show that the plaintiff’s ditch was so negligently and unskillfully constructed as to be an injury to plaintiff’s land, and as to amount to a failure to perform its part of the contract, may be properly rejected as immaterial, the only material inquiry being whether the amount of water sold was supplied at the place agreed upon. Such evidence would also be irrelevant in the absence of a pleading under which it was proper.