Mesnager v. Engelhardt

California Supreme Court Jul 11, 1895 No. No. 19455Published

Before: Henshaw

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Holding. The court held that the plaintiff possessed an easement for transporting water across the defendants' land via pipes and ditches, but lacked the legal right to construct a dam or divert water on the defendants' property.

Issues

Whether the plaintiff had a legal right to construct a dam on the defendants' land under the granted easement.
Whether the findings of the trial court were fatally inconsistent or insufficient to support the decree.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is a right of way for the purpose of transporting plaintiff’s water across defendants’ land, and not a right of way for the construction of a dam.”

“plaintiff is adjudged to have no right to build any dam or do any work for the purpose of diverting the water of the creek upon defendants’ land.”

Synopsis

Husband and Wife—Separate Property of Wife—Void Grant by Husband—Right to Revoke Deed.—A husband, who has no authority from the wife, cannot grant a right to build a dám and make a ditch in a creek bordering on her land, and the wife is not bound to allow the maintenance of a dam in the creek upon her property against the construction of which she has protested, nor to allow the appropriation of water to which she is entitled by means of such dam.

Id.—Diversion of Water—Change of Point of Diversion—Easement. Where the owner of a tract of land bordering upon a creek above land which is the separate property of a married woman diverted the water upon his upper land, and carried it by a ditch across her land under the grant of a right of way therefor, and a right to construct new ditches or pipe lines across her land, he is not entitled, against her protest, to enter upon her land to change his point of diversion, and to erect a dam upon her land under a void grant of such right executed by her husband alone.

Id.—Ambiguity in Findings — Decree—Damnum Absque Injuria.— Where the court finds the existence of the right of way and the nature and extent of an easement to which the plaintiff is entitled for the purpose of transporting water across the land of defendants, and that the defendants interfered with plaintiff in the enjoyment of his easement, and by the decree he was given all the relief to which he was entitled, which adjudged him to have no right to build any dam upon the defendant’s land, the fact that the court also found that his crops would suffer damage from interference with the relaying of his water-pipes along his right of way and rebuilding his dam at the point of diversion, is not ground for a reversal of the judgment; but, so far as concerns any damage to his crops from the construction of the dam upon defendants’ land, the interference of the defendants therewith was damnum, absque injuria, of which the plaintiff has no just cause to complain.

Henshaw, J. Appeals from the judgment and from the order denying a new trial.

The action was for an injunction. Plaintiff alleged that he was “ the owner of a right of way, and in particular for the purpose of laying a pipe line and the erection of a dam, and the construction of ditches, and for the doing of any work necessary for the diversion of the water flowing in the Verdugo creek, over the following described land.” The land is then described. Next follows a description of the “particular right of way” claimed, which commenced at “ the point where the dam constructed by the plaintiff in 1892 was situated,” and extends over and across the land of defendants to the point where “ said pipe line constructed by plaintiff in 1892 crossed the northeasterly line of defendants’ land.”

Plaintiff then avers the interference of defendants, their preventing him “from entering upon said land and from using his right of way for the purposes aforesaid,” and his damage, and prays “that his right of way over the land described in his complaint, and in particular for ditches, dams, and pipe lines, for the purpose of diverting the water from the said Verdugo creek, [70]be declared good and valid forever,” and for a perpetual injunction.

, The defendants for answer made denial, and the facts as disclosed by the evidence and found by the court proved to be that the land upon which the dam was to be constructed and the ditches dug, and over which the pipes were to be laid, was the separate property of the wife of defendant George Engelhardt. In 1891 the husband, without authority from his wife, attempted to convey, by instrument in writing to plaintiff, the right “to build a dam and make a ditch in the Verdugo creek, and on my north line as near as possible from the northeast corner, about two hundred feet, more or less, providing said dam and ditch will not interfere with any private entrance.”

In April, 1892, the Engelhardts, husband and wife, granted to plaintiff “the right of way over their land for all purposes, and also the right to use a certain, water ditch, now existing on the place, to run his own water along with theirs, or to build new ditches, and so forth.”

Under these instruments plaintiff assumed the right ta construct a dam upon defendants’ land, obstructing the natural flow of the creek waters, and to lay a pipe line to conduct these waters to his lands; and, in 1892, entered upon the lands, and, with the assistance of George Engelhardt, built a dam and laid his pipe line at an expense of two thousand dollars. The dam was injured by the floods of the following winter, and in 1893 plaintiff again attempted to enter upon defendants’ land to relay his pipes and rebuild the dam, when he was forcibly prevented by defendants.

Mesnager v. Engelhardt

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