The record-union., 1891-02-23

1ngly, that plaintiff, as successor to Will
son, has right to develop water on the
flfty-acre tract, and that the defendant
has no right to deueIop water thereon
We do not think that plaintiff has any
such right, if by developing water is
meant the digging of wells, running of
tunnels, and the like. Nor do we think
| that the defendant is precluded, as sue
eessor OF Kewen, either by the deed or
contract, from digging wells, running
tunnels, etc., on the tifty-acre tract for
the purpose of obtaining water, so long
as he does not thereby interfere with or
perceptibly diminish the natural flow of
the stream.
The decree Of the Superior Court should
be modified, so far as necessary, to bring
1t in harmony with these views.
The cause is remanded, with directions
10 the superior Court to modify its decree
accordingly, and as so modified it will
stand affirmed. The appellant to recover
costs of the appeal. BEATTY, G. j.
We concur:
MCFARLAND, j.,
SHARPSTEIN, j.,
DEHAVEN j.
GARoUTTE, J.
DISSENTING OPINION.
L concur in the Judgment in so far as it
olrects modification ofthe decree, but am
unable to concur with the majority i'll
their construction of the contract between
the Wilson's and the Kewens'. l am un-
able to see in that contract an intention
on the part of the parties thereto, to con-
vey or partition their water rights. The
object of the contract was to secure water
for the tract Of land then owned by the
respective parties. Wilson could not get
1t upon his land-portions of his land
without crossing the lands of Kewen.
kewen could not get it upon certain Dor
tons of his land, which he desired to irri-
gate, without the use of the ditch he had
| constructed on Wilson's land. 1t seems
that Wilson never used this ditch, but he
could get water on his land lying east Of
Lake Vineyard by bitches, fumes and
aqueducts, through which to carry the
water upon and across Kewen's land.
Each granted to the other an easement for
the purpose of conducting the water upon
his land. In fixing the time each was to
use the water, they did not necessarily
convey any water right, and, in the alb
sence of an intention to do so clearly ap-
pearing in express and unequivocal
terms, it should not be held that they did.
IL third person had purchased the
land lying below the 1919 acres owned
by kewen, he certainly would not have
been bound by the contract between Will
son and kewen. He could have main
tanned his right to the use of the waters of
the stream as riparian proprietor, not
wIthstanding the fact that the stream had
is source on the lands OF Wilson. kidd VS..
Laird, 10 Cal. l79;N Co. & s. Co. VS.. Kidd.
81 Id. 311; Gould VS.. Stafford, II I'd. Gs. !
As between themselves, of course, Wilson
and kewen could dispose of their water
rights as they chose; but they could not
affect the rights of lower proprietors
and am unable to see how the defendant
can be estopped from claiming the same
right that any other purchaser of the land
below the kewen lands would have had
as riparian owner. If he had owned the
lower tract at the time the contract
was entered into by Wilson and
kewen, or if he had purchased
1t before he purchased the Kewen
tract, 1t does not seem to me that
he would have lost his rights as riparian
owner of the first tract purchased simply
because his second grantor had entered
into the contract with Wilson. I am at q
loss to understand why he waived his
riparian rights as owner of the lower
tract by purchasing the Eewen tract.
When he purchased the lower tract he
took with the grant all the right that any
other grantee could have taken.
But, as stated before, it seems clear to
me that the only object of the parties to
the contract was to secure the right of
way, each from the other, for conducting
water across the land-the agreement as
TO the time each was to use the water being
mere matter of conyenience-and the use
of the water contemplated by the parties
was confined TO the lands then held by
them. 1t may be, and doubtless is true,
that the defendant is entitled to use the
water on the kewen tract only, in accord
ance with the terms of the contract be-
tween Wilson and Kewen, and that he
would have no right to use the ditch or