Goff v. Shaw

STONE, J. This action concerns the right of respondents to transport irrigation water across land owned by third persons.

Mr. George, who is not a party to this action, owned contiguous lots of approximately 10 acres each, near the City of Dos Palos, County of Merced. He sold the south lot to appellant Shaw, who subdivided it. Prior to Shaw’s purchase, an- open ditch carried irrigation water from a source on the north lot, retained by George, southerly about half way across the Shaw lot and thence westerly to the west line thereof. Shaw’s west line is also the east line of respondents’ property. However, respondents own only the south half of the lot adjoining Shaw on the west; the north half is owned by one Plescher, who is not a party to this action.

Before Shaw subdivided his lot, the owners of all four parcels involved, respondents Goff, appellant Shaw, Mr. [176]George and Mr. Pleseher, by mutual agreement relocated the irrigation ditch so that it no longer ran south and through the proposed subdivision parcel, but directly west on the property retained by George, to the lot owned by Pleseher, and thence southerly to respondents’ property. Thus the ditch was relocated along the common east-west boundary between the subdivision property and the Pleseher and Goff parcels, but entirely on the Pleseher and Goff side of the common boundary.

Some time later it became necessary for Shaw to obtain an additional 10 feet of the land at the west end of his property, to meet subdivision street requirements. Shaw's agent, appellant Survera, negotiated a purchase of the 10-foot strip, the north half from Pleseher and the south half from respondents Goff. However, before Goff would deed his 10 feet on which the ditch had been relocated, he required appellant Survera to insert a clause in the sales agreement that Pleseher’s consent would be obtained to relocate the ditch parallel to the 10-foot strip. The 10-foot strip of land was deeded to Shaw by Pleseher and Goff. The City of Dos Palos then paved the strip where the ditch had been, and Pleseher permitted a new ditch to be dug across his property.

Approximately one year later Pleseher wrote Goff that he contemplated subdividing his land and that he would require Goff to lay a covered pipeline in the place of the open ditch. Goff then filed this action, joining as defendants, Shaw, his agent Survera, and two real estate salesmen, appellants Brown and Blakesley, who were selling lots in Shaw’s subdivision.