[Civ. No. 1744.

Second Appellate District.

June 19, 1915.]

#### JAMES de WEBER, Appellant, v. JOSEPH CASSIDAY, Respondent.

Water-rights—Well—Quitclaim Deed to Interest in—Construction OF.—Where a quitclaim deed purported to convey an undivided one-half interest in a certain well of water, together with t'he windmill and other appurtenances attached to it for “conveying water to the present home and lands of the said party of the second part, with which said plant is now connected,” which well thereafter caved in and was abandoned, the deed cannot be construed as granting an interest in a new well constructed by the successor in interest of the grantor, at her own expense, upon the land some thirty-five feet distant from the old well, notwithstanding the equipment of the old well was used with the new one, the constructor of the new well having purchased it from the pa-son on whose land the first well was located.

Id.—Title by Prescription—When not' Shown—'Use of Water by Tenant.—Where t'he owner of the land upon which the new well was constructed occupied, as a tenant, the land to which the water from the old well had been conducted, and during her tenancy, connected the new well with the pipe-line extending to the property that she occupied as tenant, but at the time of the termination of the tenancy she disconnected the pipe, shut off the flow of water *704and refused to recognize the owner or his tenant as possessing any interest in the new well or right to receive water therefrom, the facts show a want of all the elements essential to constitute a prescriptive right to take the water from the well, as the use was interrupted and was not adverse.

APPEAL from a judgment of the Superior Court of Santa Barbara County and from an order denying a new trial. S. E. Crow, Judge.

The facts are stated in the opinion of the court.

B. P. Thomas, for Appellant.

William G. Griffith, and C. Kelley Hardenbrook, for Respondent.

SHAW, J.

The purpose of the action was to obtain a decree declaring plaintiff the owner of an undivided one-half interest in and to a certain well wherein water had been developed, together with a like interest in the pump and windmill used in raising the water therefrom and pipe-line conducting the same for use upon plaintiff’s premises, and to enjoin defendant from interfering with such use.

Judgment went for defendant, from which, and an order denying a motion for new trial, plaintiff appeals.

It appears that in April, 1898, Prank Ransom and his wife were the owners of the northeast quarter of the southwest quarter of section 26, and Ira Winget was the owner of the west half of the southeast quarter of said section; that prior to April 11, 1898, the Ransoms and Winget had constructed a well located, as they believed, upon said northeast quarter of the southwest quarter of said section 26 so owned by the former, but which, in fact, as found by the court, was located on the southeast quarter of the northwest quarter of the section, owned by other parties. After the supply of water was developed in the well it was equipped with appliances for raising the water and a pipe-line constructed leading therefrom to the land so owned by Winget. Thereafter, on April 11, 1898, the Ransoms executed a deed whereby they remised, released and quitclaimed to Winget “the undivided one-half interest in that certain well of water and the windmill, tank, pump, pipe, and all appurtenances thereunto attached or in any way connected therewith, *705needful for pumping and conveying water to the present home and lands of the said party of the second part (Winget), with which said plant is now connected, and which said well and pumping plant is located at or near the northwest corner of the northeast quarter of the southwest quarter of section 26.” From thence for a period of seven or eight years, to a time when this well was destroyed by caving in, Winget obtained water from this well and exercised the rights of a tenant in common therein. When the well caved in the further use thereof was abandoned and Mrs. Burbridge, the then owner of the Ransom land, at her own expense, caused to be constructed thereon a new well, located some thirty-five feet from the old well, and in equipping the same she removed from the old well the windmill and pump, installing them in the new well. Plaintiff has acquired title to the Winget land, and defendant is now the owner of the Ransom land.

The court, as stated, found that the old well and pumping appliances installed therein were not constructed upon the Ransom land, but upon the southeast quarter of the northwest quarter of said section, by reason of which fact defendant insists that as the Ransoms had no title to the land upon which the old well was located, the quitclaim deed conveyed no interest therein. Appellant, however, insists the evidence fails to support this finding, his contention being that the evidence shows the well to have been located upon the Ransom land. To our minds, it is immaterial whether so located or not. Conceding it to have been located upon the Ransom land, as both parties to the quitclaim deed believed, the rights of Winget and his successors in interest must be measured by the description in the Ransom deed. This was a one-half interest in the well and appurtenances thereunto attached, *with which plant the home and land of Winget were at the time of the execution of the deed connected.*Clearly, the deed had reference to the old well, which, as stated in *Davis*v. *Spaulding,*157 Mass. 431, [19 L. R. A. 102, 32 N. E. 650], when used as a general term of description, “designates the portion of land under and occupied by the excavation, and its surrounding retaining walls and any structures or appliances built upon the land to facilitate its use, and also the water at any time actually in the *excavation,”*citing *Johnson*v. *Rayner,*6 Gray (Mass.), 107, *706and *Mixer*v. *Reed,*25 Vt. 254. As said by appellant, “the caving in of the old well did not destroy the easement created by the Ransom deed,” since “the well,” being a term of general description and importing the land upon which it was constructed, might be restored and the easement continue to be operative thereon. While plaintiff might have exercised his right to reconstruct the well, clearly he could not have entered upon other parts of the tract and dug a well in lieu of that destroyed. We perceive no distinction as to the rule applicable to a well the construction of which is projected downwards from the surface of the ground, and a house the erection of which is projected upwards therefrom. The Ransom deed, so far as it conveyed to Winget an interest in the well, may be likened to the conveyance of an undivided one-half interest in a house and the ground upon which it stands by the owner of a larger tract of which that conveyed is a part. Suppose the house is partially destroyed by fire, and, neither party interested therein making repairs, the grantor duplicates its construction on another part of the land; surely his grantee cannot claim any interest in the new structure. There is nothing in the Ransom deed which imposes any duty upon defendant to keep the well in repair for plaintiff’s use. Since neither party did anything toward the reconstruction thereof, such inaction worked an abandonment of the well by both. Thereupon Mrs. Burbridge, the then owner of the Ransom tract, dug a new well upon another part of the land, It is impossible to conceive any theory under which plaintiff’s interest, *so limited by the terms of the*deed; could be made to apply to this well so constructed upon such tract of land. Such well was not subject to any right or easement acquired by Winget under the Ransom deed.

It appears that the old well, according to the uncontradicted evidence of a survey made, was not located on the Ransom land, but upon adjoining land, ownership of which was claimed by W. W. Doerges, by virtue of which fact he ■likewise claimed the windmill and pump connected therewith and which he had removed from the old well so claimed to be upon his land, and used them in connection with another well thereon. Mrs. Burbridge, for a consideration, obtained this pump and windmill, which she installed at the new well. Thus appropriating them, assuming plaintiff had *707an interest therein and conceding no foundation for Doerges’ claim, gave plaintiff no title in the new well or right to take water therefrom.

Appellant finally insists that he has acquired an easement to take water from the new well by prescription. This claim is based upon the fact that Mrs. Burbridge, while owner of the Ransom land and after constructing the new well thereon, occupied the Winget land, now owned by the plaintiff, as his tenant. During this tenancy she connected the new well with the pipe-line extending to the Winget home, through which she obtained a supply of water for her use during her tenancy. At the termination thereof she disconnected the pipe and shut off the flow of water to the Winget land, now owned by the plaintiff, and refused to recognize plaintiff or his tenant as possessing any interest in the new well or right to receive water therefrom. The evidence produced shows a want of all the elements essential to constitute a prescriptive right in plaintiff to take water from the well. Not only was the use had by plaintiff and his predecessors in interest therein broken and interrupted, but it was not adverse. To constitute the prescriptive period of five years, there must be included therein the use of the water by Mrs. Burbridge during her tenancy of the land owned by plaintiff. Clearly her use thereof was not by virtue of the existing relation of landlord and tenant, since the landlord did not own the supply of water, nor, at that time, so far as shown by the record, claim the right to water from the new well, but it was the use of her own estate, as to which there could be no adverse user against herself. If A, owner of a lot upon which he has a well of water, occupies as tenant of B for a period of five years a house on an adjoining lot to which he, through pipes, conducts a supply of water from his well, it cannot be said that by reason of such fact B has obtained an easement in A’s well for taking water to be used in the former’s home.

Without regard to plaintiff’s rights in the old well and its appliances, together with the pipe-line, the rights to none of which are here involved, we are clearly of the opinion that upon the record he has no interest in the new well or right to receive water therefrom. This view of the ease renders it unnecessary to discuss other errors presented by appellant. *708They are immaterial in that in no event were plaintiff’s rights prejudiced thereby.

Judgment and order affirmed.

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 16, 1915.