Clyne v. Benicia Water Co.

California Supreme Court Nov 10, 1893 No. No. 18109Published

Before: Temple

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Holding. The court held that the right to water provided under the contract constituted an appurtenance to the land that passed to the plaintiff upon foreclosure, and that the defendant could not avoid specific performance without rescinding the contract and restoring the riparian rights it acquired thereunder.

Issues

Whether the right to water under the contract passed to the plaintiff as an appurtenance to the land upon foreclosure.
Whether the defendant could avoid specific performance based on a failure of consideration without rescinding the contract and restoring the acquired riparian rights.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“the right to it, including the flow of water from the main, passed under the conveyance to plaintiff.”

“If the defendant has taken the water from the creek under the contract it must restore it as a condition of rescission.”

“the judgment in said cause is modified so as to require plaintiff to convey to defendant his right to the water of the Paddy Ranch creek”

Synopsis

Water Rights—Appurtenance to Land—Purchase Under MpicroAGE Foreclosure.—A water right acquired by the owner of land under an agreement with a water company relinquishing riparian rights to the water company, and providing that the water company should put a one-inch tap in its mains, from which the owner of the land could draw all the water required for domestic purposes and for irrigation of a portion of the land, which water was furnished in accordance with the terms of the contract and used on the land for more than five years, constitutes an appurtenance to the land, and the right to it, including the flow of water from the main, passed under a conveyance executed in pursuance of a decree foreclosing a mortgage made prior to the agreement with the water company.

Id.—Rescission oe Contract—Restitution oe Riparian Rights.—If it be conceded that in consequence of the sale under the foreclosure of the prior mortgage, the water company lost the riparian rights it acquired from the owner of the land, and that it is entitled to rescind the contract for failure of the consideration, it could not effect such rescission without restoring to the purchaser under the foreclosure sale all of the riparian waters which it had in fact diverted from the land under the contract, a¿d it is not enough that such purchaser has the right to sue to recover such riparian waters.

Id.—Specific Performance of Contract—Affirmance by Plaintiff— Condition of Relief—Conveyance of Riparian Right.—-An action by a purchaser claiming title under the foreclosure sale to enforce specific performance of the agreement with the water company, is an affirmance of the contract made after the execution of the mortgage between the owner of the land and the water company; but it is proper that the purchaser should be required to convey the riparian right to the water company, as a condition of relief.

Temple, C. Action to enforce specific performance of an agreement.

The judgment was for plaintiff, and this appeal is upon the judgment-roll.

The findings show that July 5,1883, Eliza D. Nichols was the owner of a tract of land in Solano count), bordering a natural watercourse known as “ Paddy Ranch creek.” She and her grantors had for ten years used the water of said creek for domestic purposes, and for irrigating about four acres of land, part of said tract.

That July 5, 1883, said Nichols executed a mortgage whereby she .mortgaged said land to one Boynton to secure a loan to her of seven thousand dollars and interest, which mortgage was on that day duly recorded.

That defendant, being a water company, desired to construct a reservoir on Paddy creek above the lands of Nichols, and with that view, November 5, 1883, entered into an agreement with said Nichols as follows:

“This agreement, made this fifth day of November, 1883, between Eliza D. Nichols of the county of Solano, State of California, party of the first part, and the Benicia Water Company, a corporation duly organized under the laws of the state of California, party of the second part, witnesseth: That the said party of the first part, in consideration of the covenants on the part of the said party of the second part hereinafter contained hereby grants to the said party of the second part the right to lay and maintain a main water pipe through the land now owned and occupied by said first party; and the said first party hereby waives all right to the flow of water in Paddy Ranch creek.

“And the said party of the second part, in consideration of the covenants of the said party of the first part "hereinbefore mentioned, agrees to and with said party of the first part:

[313]“1. To put a one-inch tap in said main pipe at such point on the premises as said party of the first part may direct; from which tap said first party may draw free of cost all the water required by her for domestic purposes, and for the irrigation of her vegetable garden, containing about four acres of land.

“ 2. To pay said party a fair and reasonable compensation for any damages that may be done to the vines and fruit trees of said first party in laying‘and maintaining said main water pipe; the amount of damages, if any, to be determined by arbitration.

Clyne v. Benicia Water Co.

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