Malibu Water Co. v. MacGregor

FILES, J. The judgment in this action declares that the plaintiff Malibu Water Company is the owner of all water under any portion of defendants’ property and enjoins defendants forever from maintaining any well on the premises or extracting any water. Defendants have appealed from the judgment.

Both the water company and defendants base their claim upon a conveyance from a common predecessor, the plaintiff Marblehead Land Company. In 1943 Marblehead granted a tract of land in Malibu Canyon to Joseph Shalhoub. This deed excepted “All water on or under said lands and every part thereof and all riparian rights to said waters.” The deed further provided:

“Notwithstanding the foregoing exception of water and riparian rights to water on the lands herein conveyed, it is covenanted by Grantor that in event the Malibu Water Company, a corporation, or Grantor herein are unable to furnish or to cause water to be furnished to the lands herein conveyed in an amount sufficient for agricultural purposes and said inability continues for a period of at least ten (10) days, then in that event Grantor herein agrees that Grantee herein or his successors in interest, shall have the right or license to drill a water well or wells upon the lands herein conveyed for the purpose of extracting water therefrom for use only upon [353]the lands herein conveyed for agricultural or domestic purposes, so long as water is not again taken from other supply facilities of said Malibu Water Company or the Grantor herein... .

“The foregoing covenants in the immediately preceding two paragraphs shall be deemed covenants running with the lands for the benefit of the lands herein conveyed and binding upon the Grantor, its successors in interest and assigns, and likewise for the benefit of the Grantee his successors in interest and assigns.”

Subsequently, defendants acquired 2% acres of the property described in the Shalhoub deed. It was stipulated in the pretrial statement that defendants are the successors in interest to Shalhoub as to this property. This 2% acres will be referred to as the Shalhoub parcel. Defendants also obtained from a man named Archer an adjacent 2% acres on which they built a home. In the spring of 1960 defendants requested the plaintiff water company to furnish water for agricultural purposes and service was begun on July 13. On July 29 the water company mailed to its customers a notice that it would be necessary to commence rationing of irrigation water on August 1 at the rate of 1,500 gallons per acre per month. This rationing was necessary because of a shortage of water. On August 2 defendants wrote to the water company, advising that this allotment would be insufficient and that defendants’ peak consumptive use would be about 400,-000 gallons per month. The letter also made reference to the well-drilling clause in the 1943 deed to Shalhoub.