Smith v. Stearns Ranchos Co. , 132 Cal. 178 ( 1901 )

VAN DYKE,J.

—This was a suit for an injunction to restrain the defendants from stopping the flow of plaintiffs’ water in the North Riverside and Jurupa Canal, or depriving the plaintiffs of the enjoyment of their easement therein. A temporary injunction was granted as prayed for, and after the trial the injunction was made permanent, “ provided, however, that said defendant I. D. Rogers may, at any time he may desire, make out and present to each and every of said plaintiffs herein a statement, claim, or bill for and on account of their proportion of the expense of the maintenance and repair of said canal during the times hereinbefore mentioned, eliminating therefrom the charge above named of $135 for abstracting, and that thereafter the said defendant I. D. Rogers may apply to this court to have this decree vacated and set aside as to the injunction hereinbefore granted, and upon sufficient showing to this court that such statement, claim, or bill eliminating said charge for said abstracting has been so made out and presented to plaintiffs, then said defendant I. D. Rogers shall be entitled to have this decree, so far as it grants an injunction against said defendant, vacated and set aside.”

The plaintiffs appeal from the judgment so made and entered. On February 5, 1890, the North Riverside Land and Water Company, a corporation, party of the first part, then the owner of the canal or irrigating-ditch referred to in this case, conveyed the same by deed of that date to the Stearns Ranchos Company, a corporation, party of the second part, which deed contained the following reservation: “Hereby especially reserving, however, the perpetual right of way to carry through such canal the 350 inches of water, being same 350 inches of water reserved by first party in its conveyance of other water to second party by indenture dated March 23, 1888, . . . subject, however, to the first party’s paying the proportion of the entire expense of maintaining and repairing such canal that 350 inches of water sustains and bears to the entire amount of water from time to time being carried through such canal.” In Rogers v. Riverside Land and Water Company, ante, p. 9, we had occasion to consider this grant, and the reservation in said conveyance above quoted, and to determine what expenses or services were or might be included within the terms, “ maintaining and repairing such canal.” The plaintiffs and appellants, fifty-two in number, are grantees and successors of the North Riverside Land and Water Company, and the defendant and respondent I. D. Rogers is the lessee of the Stearns Ranchos Company, and in the management and possession of said canal or irrigating-ditch. The water in question, which it is sought to restrain the defendant from shutting off or interfering with, belongs to the several plaintiffs and appellants, and not to the owner of the canal, or the lessee of such owner, and it is contended on the part of appellants that their right to have such water flow through said canal is not dependent upon the condition precedent that they should pay the proportion of the expenses specified in the reservation referred to, but that the meaning is, that the party to whom such right is reserved agrees or covenants to pay such proportion of the entire expense. We think the contention of the appellants must be sustained. It cannot be determined in advance what the expense of maintaining and repairing the canal will be, nor can the whole amount of water carried in the canal at any particular time be determined in advance; and by the right reserved in said grant it is only agreed to pay the proportion of the entire expense “that 350 inches of water sustains and bears to the entire amount of water from time to time being carried through such canal.” There may be a wide difference of opinion between the owner of the canal and the owner of the portion of water entitled to have it carried therein, in reference to the expenses of maintaining and repairing the canal. There is nothing in the language of the reservation from which it can be inferred that the parties to the deed intended that the owner of the canal should, in such case, be the sole judge of what should constitute maintaining and repairing, or the amount thereof. In this case, for instance, the defendant Rogers, in his claim for maintaining and repairing the canal, overcharged to the extent of $135, which was disallowed by the court. The right of the appellants to have their water carried through the canal under the terms of the reservation in question is an easement, and constitutes property. It would not do to give the owner or the manager of the canal the power to deprive the owner of the water of the right to have the same conveyed therein, unless he should submit to paying such expenses for maintaining and repairing as the company or its lessee might see fit to charge. The cases referred to by respond- exit’s counsel, of water companies or gas companies possessing the power to shut off water or gas for non-payment of rates, has no application here. In such cases the rate of water or gas is previously ascertained and fixed. Here, as already stated, the proportion of the expenses to be paid is not fixed, and in the nature of things cannot be fixed in advance. Besides, water and gas companies own the water or gas, as the case may be, supplied to the customer, and should not be compelled to part with their property without being paid therefor. Here, the. owner of the canal does not own the water, and when it flows down to the owner thereof, the canal company parts with no property. The right of the Stearns Ranchos Company, under the terms of the reservation, is simply to be reimbursed for the expenses of maintaining and repairing the canal, by the parties having an easement therein, in the proportions stated in the said reservation.

The judgment is reversed and the cause remanded.

Garoutte, J., and Harrison, J., concurred.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 11th of April, 1901: —