Biggs Ditch Co. v. Jongste

SCHAUER, J. Defendants appeal from a judgment quieting in plaintiff corporation, a mutual water company, title in and to “an easement or right-of-way upon, over, along and across the entire extreme northerly and westerly boundaries” of certain “lands of defendant, Louise T. Jongste . . . for canal and/or ditch purposes,” and enjoining and restraining both of the defendants (Louise T. Jongste and her brother, Bernard Jongste) from “using, interfering or obstructing” such easement or right of way and from “in any wise damming up, holding, obstructing or diverting the water flowing in said canal and/or ditch and from in any wise preventing plaintiff, its agents and employees, from free ingress or egress to said easement or right-of-way for the purposes of maintenance, care and preservation thereof.” Plaintiff bases its claim of title solely on asserted adverse possession and use of the ditch in question under a claim of right (but not color of title; see 1 Cal.Jur. 570, § 51) for a period of more than thirty years last past, while defendants contend that plaintiff’s own evidence establishes that defendant Louise T. Jongste and her predecessors in interest for more than twenty years last past have used waters from such ditch without payment therefor, and that “the water from the ditch or canal has [thereby] become a part of” defendants’ land by user. The deeds by which defendant Louise Jongste and certain of her predecessors in interest acquired the land [300]in question contained the following provision: “Provided However that all of the lands that are now being used as a ‘Right of Way’ to and for the ‘Main Canal’ of the Butte County Irrigated Land Company, of Biggs, Cal., as it is now built on, along, and over the North and West Lines of the above described premises are hereby reserved from the land intended to be conveyed by this deed, and the same is so reserved for and in consideration, that the owner or owners of the above described land and premises are at all times hereafter to have the privilege and right to use water from and out of the said Canal, (as hereinbefore described) for the purpose of irrigating of any and all of the said lands and premises, without the payment for a ‘Water Right’ to the Butte County Irrigated Land Company, or any other Company or any Companies for such a right, and the said Butte County Irrigated Land Company, shall not be required to pay or give any other compensation for their right of way, for their main canal, excepting a water right to and for the above named lands. ’ ’

It is to be noted that plaintiff was not a party and is not in privity to any of the above mentioned deeds, and, as previously mentioned, claims title only by adverse possession and user under a claim of right, not by deed or color of title from any predecessor in interest. It is unnecessary, therefore, to determine whether the provision above quoted (that the “owners of the above described land . . . are at all times hereafter to have the privilege and right to use water from and out of the said Canal . . . without the payment for a ‘Water Bight’ ...” [italics added]) meant that the owners of the land described were authorized for all time to come to take and use water from this distribution ditch without paying for such water, regardless of who owned it, or were merely given a form of appurtenant right to purchase water from the ditch for the irrigation of their land without further payment for such appurtenant right of purchase. Even if we assume that the provision was intended to give the right to take and use the water without payment therefor, such provision is a mere self-serving declaration; plaintiff, not being in privity to the deeds containing such provision, is not bound by it. The right of defendants to purchase water from the ditch for irrigating their land, on the same terms as other appurtenant land owners, has not been disputed and is not in issue.