Flick v. Bell

HAYNES, C. This suit was brought by appellants to enjoin the defendant from removing certain water-pipes and destroying a certain reservoir situate upon the lands of appellants, and to adjudge that respondent has no right or claim to said pipes and reservoir, and to quiet plaintiffs’ title thereto. The answer of defendant alleged that in 1890 one Samuel Gruber was the owner in fee and in the possession of the lands, described in the plaintiffs’ complaint; that defendant then desiring to construct said reservoir and lay said pipes for the purpose of conveying water from a certain spring, and using the same for power and other useful purposes, upon respondent’s premises, in the town of Shasta, applied to said Gruber for the right, license, and privilege to construct said reservoir and lay said pipes in and upon said land; that Gruber, in consideration that the defendant would give him the right to use water from said reservoir in case of fire, and would so construct the reservoir, with trapdoors and openings, as to enable him to take water therefrom in case of fire, orally granted defendant the right, license, and privilege to construct said reservoir and lay down said pipes; that defendant agreed to the terms and conditions imposed by Gruber, and constructed said reservoir and laid said pipes, and that said Gruber and defendant used and continued to use and enjoy the same uninterruptedly until said Gruber conveyed said land to plaintiffs, in August, 1892; that plaintiffs purchased said lands with full and actual notice and knowledge thereof; that defendant constructed said reservoir and laid said pipes, and that the same belonged to and were the property of defendant; and that, ever since the purchase and occupation of said lands by plaintiffs, defendant has continued to use and enjoy said reservoir and pipes in the same manner as before, down to the commencement of this action, without objection and with the acquiescence of plaintiffs. The answer further alleged that plaintiffs have never revoked [208]said right, license and privilege, nor attempted to rescind said agreement so made and entered into by said Gruber and defendant. The findings followed the allegations of the answer, and judgment was entered for the defendant for costs. The appeal herein is by the plaintiffs, from said judgment, and from an order denying their motion for a new trial. The errors specified go to the sufficiency of the evidence to sustain the findings, and to certain alleged errors in the admission and rejection of testimony, and that the findings do not support the judgment.

As to the first and second findings of fact, it is sufficient to say that the evidence is conflicting, and these findings therefore cannot be disturbed. As to the third finding, to the effect that plaintiffs had not revoked the rights, privileges or license granted by Gruber to the defendant, nor given any notice of their intention to do so, nor taken any steps to rescind the agreement for which said rights and privileges were granted, it is contended by appellants that the conveyance of the lands by Gruber to the plaintiffs was a revocation of the license, and that the beginning of the present action is evidence of the revocation of any right, privilege, or license existing prior thereto; and this finding, and the further contention on the part of the appellants that the pipe and reservoir became part of their land, and that respondent has no right to remove the same, present the principal questions in the case.