Sefton v. Prentice

McFarland, J. This action is somewhat difficult to classify. Its purpose is to obtain an injunction to prevent defendants from preventing plaintiff from attaching a water-pipe to a certain water pipe of defendants. Judgment went for plaintiff, and defendants appeal from the judgment and from an order denying their motion for a new trial.

The decision of the case rests upon the respective rights of the parties under a certain written contract made by appellants on March 24,1891, with one Frederick [671]T. Hill. At that time appellants contemplated building some kind of a conduit to carry water from the large ditch of the San Diego Flume Company to Spring Valley, where they owned lands. This contemplated conduit was to run near to and past a point called “Patterson’s corner,” which was about two and one-half miles distant from the flume of the said San Diego Flume Company. Hill (as trustee) owned a part of lot 9, Ex-Mission rancho, consisting of about three hundred acres of land lying south of, and most of it lower in elevation than, said Patterson’s corner. Appellants at that time had not determined what kind of a conduit they would construct for the purpose of carrying said water. Under these circumstances they and Hill entered into said contract, which provided, generally, that appellants would deliver to Hill, his executors, etc., and “assigns,” at said Patterson’s corner, for twenty-five years, such amount of water as Hill would purchase and furnish from the said San Diego company’s flume, not exceeding ten miner’s inches, in consideration of one thousand dollars, which it is admitted was paid. Appellants were to begin to deliver the water within six months of the date of the contract. Within that time the said conduit was completed, and when completed it consisted of an open flume for about two-thirds of its length, beginning at the flume of the San Diego company, and the remaining one-third consisted of an iron pipe, about five hundred feet thereof next to the flume being six inches in diameter, and the rest to and past said Patterson’s corner being four inches in .diameter. The point at which the pipe commences is about one hundred and seventy feet in elevation above said Patterson’s corner; and it is continued over a hill to lands of appellants, and by force of the pressure water is carried to appellants’ said lands, and also to lands of other persons to whom appellants furnish water. When it was completed Hill was not prepared to use the water on the land on said lot 9, Ex-Mission rancho, and no request was made for the water mentioned in said contract until the month of