Bell v. Sausalito Land & Ferry Co.
Before: Haynes
Synopsis
Easements—Water Bights.—Plaintiff, With Defendant’s consent, conducted water to a tank on his lot from a spring on defendant’s lot. Thereupon he took possession of another lot, owned by defendant, and conducted water to the latter lot from the tank. Having used the water about eight years, he surrendered possession of the lot to which he had no title, and about a year thereafter purchased the same with its appurtenances, and sold the lot on which was the tank. In the conveyance to plaintiff no mention was made of the right to use the spring, but there was evidence that it was understood that he might use it so long as defendant did not need it. Held, that plaintiff had no water rights in the spring appurtenant to the lot.
Easement—Water Eights.—The Court Having Found for plaintiff in an action to enjoin the cutting off of the water, an assignment of error that there was no evidence to show any grant of the use of the waters of the spring to plaintiff was sufficient.
Easement—Water Eights.—And so of an Assignment that there was no evidence that an easement had been created in favor of the premises deeded to plaintiff, or that a servitude had attached to the land where the spring was located.
Easement—Water Eights.—An Assignment That There was no evidence to show the existence of an easement at any time in favor of plaintiff’s land to the spring was likewise sufficient.
HAYNES, C. This action is for an injunction to restrain defendant from removing certain water-pipes, and depriving plaintiffs of water supplied thereby, from a certain spring, [54]and for damages for alleged interruptions thereof. The executors of Alexander Forbes were made parties defendant, but they did not answer, and do not appeal. Plaintiffs had judgment granting a perpetual injunction, from which, and an order denying the corporation a new trial, it now appeals.
There is no material conflict in the evidence. Mr. Bell was the only witness on the part of the plaintiffs, and the testimony of defendant’s witness was mainly to additional facts, which were not rebutted. In 1874 the plaintiffs were the owners and in possession of lot 2, block 29, of the village of Sausalito. Appellant had formerly owned that lot, and was then the owner of lots 3, 4, and 5 in the same block, and also of another lot, upon which was a blind spring, about six hundred feet distant from lot 2, and which, with the knowledge and consent of appellant, plaintiffs improved, and conducted the water therefrom through pipes to a tank on lot 2, and from which water was supplied to their dwelling on said lot. In 1875 plaintiffs bid off said lots 3, 4, and 5 at an auction sale, but made no payment thereon, and obtained no title, but afterward took possession of them, and conveyed water by pipes from the tank on lot 2 to said lot 3, and used water thereon for cultivating vegetables. One or two years prior to June 21, 1884, plaintiffs surrendered possession of lots S', 4, and 5 to appellant, and on the date last named Mrs. Bell entered into a contract in writing with appellant for the purchase of lot 3 for the sum of $500, and completed her payments and received a deed therefor February 25, 1886. About the time said contract of purchase was made plaintiffs conveyed lot 2 to the Forbes estate, built a house on lot 3, and removed thereto. In the fall of 1884 appellant cut off the connection between the spring and the Forbes tank on lot 2 by taking up the pipe near the spring, and at the same time connected the tank with appellant’s water-mains, from which the tank was thereafter supplied, and for the water so furnished the usual rates were charged and paid. The contract of sale of lot 3 to Mrs. Bell was silent in regard to water rights or any appurtenances to the lot. The deed granted the lot with its appurtenances, but made no mention of the water by reservation or otherwise. The complaint alleged that the water from said spring had continuously and openly, and with the full knowledge of, and without objection from, and with the ac
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