Lee v. Pacific Gas & Electric Co.

THOMPSON (R. L.), J., pro tem. The defendant has appealed from a decree which was rendered against it quieting title in the plaintiffs to ten miner’s inches of water to be taken from a reservoir constructed on land conveyed by the plaintiffs’ predecessor in title to the defendant’s predecessor in title by a deed reserving to “said grantor and his assigns” perpetual use of ten miner’s inches of water therefrom “free of charge”. The decree also authorizes the plaintiffs at their own expense to reconstruct or repair the reservoir, removing all silt and debris therefrom so as to* enable them to secure therefrom the allotted quantity of water.

The complaint alleges that the plaintiffs became the owners of and entitled to ten miner’s inches of water to be taken from the reservoir which was constructed on the premises of the defendant, as grantee by mesne conveyance from Allen Towle, the former owner of a tract of land in Placer County, a portion of which land he conveyed to South Tuba Canal Company, the predecessor in interest thereto of the defendant; that this deed expressly reserves to the grantor and his successors in interest said quantity of water which is supplied to the reservoir from springs thereon. In effect the complaint also alleges that the plaintiffs acquired title by adverse possession to said ten miner’s inches of water to be taken from the reservoir.

It appears without conflict that Allen Towle owned 240 acres of farm land in Placer County, and that he sold, and conveyed 6.42 acres thereof to the South Tuba Canal Company September 7, 1876, which last-mentioned tract contained springs furnishiilg him with water to' an amount of ten miner’s inches, which, for some time past, he had used for domestic purposes and to irrigate the remaining portions of his ranch. That deed contained the following clause with respect to the reservation of water from the springs:

“I, Allen Towle, ... do by these presents grant unto the South Tuba Canal Company, ... all and singular that [117]certain tract of land situated in Placer County, . . . containing about six, 42/100 acres. Also a perpetual right of way for a ditch running over and across adjoining land owned by said grantor from the proposed reservoir now in course of construction by said' grantee, ... to have and to hold . . . forever.

“Whereas the above tract of land is being purchased by the above named grantee for the sole purpose and use of erecting and maintaining a reservoir thereon for the confinement and accumulation of water, and whereas there is now flowing from natural springs thereon an average of ten inches of water used for agricultural purposes upon the land of said grantor adjoining the land hereby conveyed,