The record-union., 1891-02-23

tLtu1, dIlu 10 lDelT Or his nelTS lOGcNef.
And the parties of the second part, for
and in consideration of the grant herein
before made, hath given, granted, re-
missed and released and confirmed, and
by these presents do give, grant, remise,
release and confirm to said Benjamin D..
Wilson and his heirs and assigns right
of entry for himself and his servants in
and upon all the lands now occupied by
them, called the Rancho del Molino,
being the same tract of land hereinbefore
referred to, for the purpose of opening
new water bitches upon and through the
said lands, or of using those alrea dy
opened, and for the purpose OF erecting
and building aqueductS or fumes, or of
using those already erected, and of keep
ing the said water bitches, fumes, or
aqueducts in repair, and for these pur-
poses the right to dig earth; also the right
OF way in and upon said lands for the
purpose OF guiding and conducting said
water as the said Wilson may desire or
wish, through said water bitches, fumes
or aqueducts now or to be opened or
built upon or over the said lands in such
directions, along such levels and in such
manner and mode as may seem to him
expedlent and useful, but not so as to
wantonly and uselessly injure them, the
parties of the second part and either of
them shall permit to flow except as here
| matter specified, without disturbance,
diminution or injury, through and over
their said lands along the said water
bitches, fumes or aqueducts, to such
point or points outside thereof as the said
| Wilson may from time to time select;
subject, nevertheless, to the right of the
parties of the second part to use the water
for irrigation of the said lands now occu-
pied by them, flowing in the upper or
higher ditch or in any water ditch,
tlume or aqueduct used, dug or erected
by the said parties of the first part upon
L., L.
| or either OF them, as aforesaid during the
! two days hereinafter specified, and SUBJ
ject to their further right to conduct so
much Of the water in the upper ditch at
any time when it may be flowing therein
through pipe two inches in diameter as
may be sufficient to fill the same for the
purposes of domestic use and for the play
ing of a fountain.
| And all the parties hereto mutually
covenant to perform all the obligations
herein contracted and agree that the
agreements and stipulations herein shall
bind as well themselves as their heirs,
executors, and administrators and as
signs.
''In witness whereof the parties to these
presents have hereunto set their hands
and seals the day and year first above
written. B. d. WILSON. [Seall
MARGARET WILSON, [Seall
"E. j. c. KEwEN, [Seal]
Il AN ME hEWEN. lSooal r.
Subsequently Kewen acquired the title
to the Government land occupied by him,
and ne also acquired fifty acres, including
the mouth of the Canada from Wilson,
subject to reservation OF all water rights,
and from different sources he acquired
the lands along the course of the stream
below and adjoining the land which he
claimed and occupied at the date of the
contract. All these lands and all his
rights under the contract were thereafter
sold and duly transferred to the de-
fendant.
The plaintiff has acquired certain lands
from Wilson, and succeeded to all his
| rights under the contract.
Both parties have continuously claimed
and asserted and in this action are claim
ing and asserting the rights secured to
their respective predecessors by the con-
tract, and none other. But they differ
widely as to its proper construction, and
the defendant Is using water at times and
for purposes which the plaintiff contends
are in excess OF his rights, and injurious
to it.
This action was brought to determine
the respective rights of the parties in the
waters of the stream. The Superior Court
sustained the claims of the plaintiff and
made decree declaring and establishing
its rights, and enioining the defendant
from infringing the rights so established.
Defendant appeals from the Judgment
and from an order denying new trial
The assignment of error principally re-
lied on is that the Superior Court gave an
erroneous construction TO the contract of
May z, 1860. But we think the court
construed the contract according to the
intention of the parties, as shown
not only by its terms, but by their subse-
duent action under it. They seem to
have acted upon the assumption that they
had right to divide between themselves
the entire flow of the stream, and their
agreement, though inartificially drawn
and most awkwardly expressed, clearly
evinces that such was their intention.
Nor can it be urged against this con-
struction that it imputes to the parties an
= intention to do that which they had no
right to do. For, so far as appears, they
were at that time the sole occupants of the
lands bordering the stream, and the lands
through which it flowed after leaving the
lands of Kewen belonged to the United
States. Such being the case, they had a
right to appropriate the entire stream for
any beneficial purpose. Evidently they
contemplated such an appropriation for
the purpose of irrigating the land then in
possession of kewen, and, subject to the
limited rightssecured to him by the terms
of their agreement, for the further pur-
pose of irrigating any lands owned, or
thereafter to be acquired, by Wilson,
whether riparian to the stream or not.
There was nothing unlawful or i'm
proper in such an agreement or in such
appropriation and diversion of the water.
as between themselves or as against the
United States.
1t was held by the Superior Court, cor
rectly, as we think, that by the contract
| Wilson and his successors acquired. as
against Kewen, and those claiming under
him, the right to use all the waters of the
stream and to divert the same to lands not
riparian, subject only to the rights of
Kewen as defined by the contract, i. e.,
the right to use the entire flow of the
stream ON Friday and Saturday of each
week for the irrigation of the land owned
or occupied by him at the date of the con-
tract, the right to maintain his ditch and
divert the water on the land of Wilson,
the right to draw water therefrom, when
ever it might be flowing therein, for do
mestic purposes, and for playing q fount-
ain, to the capacity of a two-inch pipe,
and the right to use the bitches, pipes and
works of Wilson, situated on his land, for
the purposes of irrigation on Fridays and
Saturdays.
1t was also correctly held by the Supe-
rior Court that Wilson, in his convey
ance to Kewep of the fifty-acre tract. re-
served all water rights then possessed by
him, whether dependent on the contract
or apurtenant to the land conveyed.
But it is contended by the appellant
that since he has become the owner of
the lands bordering on the stream below
the land owned or occupied by Kewen at
the date of the contract, he has, as ripar-
ian proprietor, right to insist upon his
share of the waters OF the stream for the
irrigation of these lands, independent of
and superior to any rights of any party
under the contract.
But he cannot at the same time claim
under the contract and against it. As
above stated, the case shows that he as