The record-union., 1891-02-08
SUPREME COURT DECISIONS.
Titled january Sol. 1ss1.


For appellant, Shaw 81 Holland.
For respondent, Levi Chase and Hun
saker, Britt d Goodrich.
81 DEPARTMENT TWO.
SAN Diego FLUME COMPANY,
Appellant, No 70 ass
LEVI CHASE, Respondent,
BY THE COURT.
This action was brought for the purpose
of having contract for the sale of water
right Tor irrigation purposes reformed,
and that it be declared that the amount of
water conveyed to and owned by the
defendant be limited by said contract to
Il inches OF water, miners measure under
a four-inch pressure and no more, and
that he be entitled and required to take
the same in accordance with such reason
able rules and regulations as may be es-
tabllshed from time to time by plaintiff
and for such other equitable relief in the
premises as should be proper.
The contract sought to be reformed is
made a part of the complaint and shows
that plaintiff and appellant, who is the
party OF the first part, contracts and
agrees that the party of the second part
defendant and respondent herel shall
have the right to make two connec-
tons with the said fiume of said party of
the first part OF a two-inch pipe entering
the side thereon near the bottom.
The pipe aforesaid shall DO
extended from the points of connection
with said fiume to, and be connected with,
the pipe system Of the party of the second
part in said orchard, and thereafter all
water drawn from said tiume shall be
taken and drawn from said pipes for the
purpose o. irrigating, through standard
pipes of not more than IL inch diameter
or carried through II inch rubber hose as
hereafter provided. Thattthe party Of
the first part will convey to the party OF
the second part Il water right OF two and
one-qnarter t24) inches OF water. miners
measure, under u tour-inch pressure, 70
be taken and used rs hereinafter
provided, and subject to the conditions
usual with said party of the first part in
the sale of water rights to other parties.
That the water to be taken and had
by the party of the second part
under this agreement and under and
by virtue Of his water rights aforesaid
shall be measured, estimated and deter
mined by the amount Of water that he
may draw from said pipes through ~
inch iron pipe standards in his said
grounds, and TO be used exclusively
thereon, from the first day of May 10 the
hrst day OF November, both inclusive,
during ordinary seasons, but should an
extraordinarily dry spring or fall necessi-
III.
he shall have the right to useand take the
same through said pipes in the same way
as hereinbetore provided; but i'll that case
shall pay the party OF the first part an
extra amount therefor, proportionate to
the sum hereinafter specified to be paid
by the party OF the second part for the
SIX months Use first aforesaid
y demurrer to this complaint having
been overruied, the defendant answered,
admitting the contract TO be as set out in
and attached to the complaint, and deny
ing all other allegations, and also filed an
amended eross-conlplaint Ca demurrer TO
the original having been sustained the
gravamen of which was that under this;
CONTRACT he was entitled to have a specific
performance of it, so that the effect there
OF would be that ne was 10 take and re-
ccive Through two 2-ineh pipes placed in
the side of the Hume Of the plaintiff, from
whence water was to be drawn, and CON
nected with the defendants pipe system.
by which he irrigated his fruit farm al
lie ac0tey he might reqltfre .foT tie arlTqtt-
ton Of has sad property, and for the uSe
Of the stock and persons kept or employed
thereon, tbGt he might dq'GW from one and
one-hdJ-inch standard pipes IN has il9f-
CATION system, and for damages and other
relief, consisting, among other things, of
the restoration of the pinch pipes con-
nected with the tlune as they had origin
ally stood, and to remove all natural OBJ
structions to the flow of the water in
these pipes, the defendant having been
limited as TO the flow of water by an OBJ
struction erected by the plaintiff at the
fiume so that only one and one-eighth
inches would flow into each of the pinch
pipes.
An answer to this cross-complaint was
fled
When the case came on for trial the
plaintiff abandoned it's action for a re-
formation of the contract. Then the de-
iendant moved for Judgment on the plead
ingS i'll the cross-action for the specific
performance of the contract, as he claimed
it was to be interpreted, and for nominal
damages, he alleging that the plaintiff, by
its answer to the cross-conplaint, had adj
mitted all the material allegations of that
pleading. This motion was sustained
and Judgment entered in accordance
Herewith. The plaintiff appeals.
The real matter 10 be determined on
this appeal is how much water the de-
PENDANT was entitled to under the con-
tract to take from the plaintiffs flume,
the appellant claiming it TO be only two
and one-quarter inches under four-inch
pressure, the respondent claiming it to be
all the water he could take through his
two two-inch iron pipes connected with
the tiune, to be distributed by means OF
pipes.
The construction given by the trial
court to the contract, as appears by its de-
cree or judgment, is not correct.
The quantity OF water which the de-
PENDANT was to get from the plaintiff s
fiume for a certain specified sum of money
was two and One-quarter inches, miners
measure, undera four-inch pressure, from
1.-The LIST day Of May to the 1st day of No
.ltr rir,r
seasons; but, should an extraordinarily
dry spring or fall necessitate longer use
of water for irrigation" ne is to have the
right to use land take the same through
said pipes in the same way' as he took
the two and one-quarter inches for speci-
fed term as above set forth, but in that
case he must pay the plaintiff an extra
amount therefor, proportionate to the sum
he was ordinarily to pay for the season
from the lst day of May until the lst day
of November, inclusive. But the guam
tty Of water to be taken was to be adj
measured to him through his two two
inch iron pipes, connected on his land
with two one and one-half-inch standard
pipes. The method OF taking this
quantity of water does not affect
the amount which the first clause of
the contract relating thereto fixed. unless
a construction be given to that clause
which Will make it entirely imperative
1t reads thus: ''That the party of the first
part will convey to the party of the Sec
ond part water right of two and one
quarter (2@)hnches of water, miners meas
ure, under four-inch pressure, to be
taken and used as hereinafter provided,
and subject to the conditions usual with
said party OF the first part in the sale of
water rights to other parties" But Civ
ing it the construction we have, it is in
entire harmony with the clause follow
ing: "That the water to be taken and had
by the party of the second part under
OF his water rights aforesaid shall be
measured, estimated and determined by
the amount of water that he may draw
from said pipes through lt-inch iron pipe