Los Angeles herald., 1892-07-12
WATER RIGHT LAW.
Some of Its Points as Viewed
by Judge Clark.
He Decides the Case of Phillips ys.
Dorsey.
A Decision of Interest to Land Owners
in Southern California-The
Document Published
in Full.

cree of perpetual injunction in the case
of Phillips VS.. Dorsey. This suit was in
relation to certain water rights, and the
accompanying opinion throws additional
light on the laws relating to water
rights in this state.
The opinion of the learned judge is as
follows:
Suit brought to enjoin defendant from
interfering with certain water right
alleged to belong to plaintiff.
In the year 1874 defendant became
and was the owner of tract of sixty
six and a fraction acres of land, in the
rancho San Jose, and in October, 1879,
while residing thereon, dedicated the
same as homestead by de-
claration in due form of law.
On August IL, 1876, the plaintiff
executed and delivered deed to one
tract of land in said rancho described by
metes and bounds" ''And also the
prior right to such quantity of water
that rises upon the rancho San Jose in
what is known as the springs thereon
and in the San Jose creek flowing over
said ranch as is sufficient to irrigate the
tract hereby conveyed and supposed to
be about one hundred acres of land"
On December z, 1876, the said Rubot-
tom conveyed to the defendant one
fifth interest in said described water
right, and on May IL, 1886, the defen-
dant conveyed the same to plaintiff.
This water right cony eyed by Rubot-
tom to defendant and by defendant to
plaintiff is the one involved in this suit.
The conveyance by defendant to plain
tiff was in consideration of another and
different water right conveyed by plain
tiff to defendant, which defendant now
owns and controls. The preponderance
of evidence shows that after the con-
veyance by defendant to plaintiff of the
water in suit and up to September,
1891, defendant did not use or claim to
own the same, but repeatedly admitted
plaintiff to be the owner thereof. De-
fendant does not offer to reconvey to
plaintiff the water right received from
him, but claims that his conveyance to
plaintiff of the water right in question
is void, because his wife did not join
therein, and this upon the theory that
said water right constituted part OF
the homestead.
1t may be admitted that if the said
water right was appurtenant to the
tract of sixty-eix acres first above men
toned it constituted part of the home
stead, and that no part OF a homestead
can be conveyed except by Joint deed of
husband and wife.
1t was not, however, necessarily ap-
purtenant. A thing is deemed to be ap-
purtenant to land when it is by right
used with the land for its benefit. Civil
code, Sec. 662. 1t is clear that had de-
fendant conveyed the water right the
day he received the conveyance from
the said Rubottom, there would have
been no necessity for his wife joining in
the conveyance. And it is equally clear
that before he can claim that the water
right was affected by the homestead dec
laration fled in October, 1879, he
must show that it was at that
time appurtenant to the, tract of
land upon which said declaration was
filed; or at least that it was appurte-
nant thereto at the time of the convey
ance to plaintiff on May IL, 1886.
This he could do only by showing that
it was used upon said land as of right |
and for its benefit &c. @. Sec. 662,
supra), and this he did not do. There
was no evidence showing to what use
the said water was put from the time it |
was conveyed by said Rubottom to de-
fendant in December, 1875, to the time
defendant conveyed it to plaintiff in |
May. 1886, and, as above stated, pre- |
ponderance of the evidence shows that |
after said conveyance to plaintiff and up |
to September, 1891, being the time COM |
planned of, defendant did not use said |
water at all. 1t is true that defendant |
testified that in 1886 and 1887 he irri- |
gated come corn and alfalfa, but admit |
ting this to be true, it is not sufficient. |
1t does not appear upon what land the |
water was used and defendants posi-
tion-he attempting to retain both the |
water right conveyed to him by plaintiff |
and the water right conveyed by him to
plaintiffs 80 wanting in equity that
he should be held to strict proof. This
view was not discussed by counsel, but
it is to my mind conclusive, and renders
it unnecessary to consider the point dis
cussed as to whether or not the deed OF |
December IS. 1850, by which defendant
conveyed an undivided one-half interest |
in said sixty-six tract operated as an
abandonment of the homestead, and
also whether or not the evidence shows
title in plaintiff by adverse possession
The finding OF the court will
be that the deed from defend
ant to plaintiff of May IL, 1856.
conveying the water right in dispute
was valid and effectual. DEFENDANTS
point that certain others should be
made parties to the suit is without
merit. A number of witnesses stated,
in answer to questions put them by de-
fendant's counsel, that they claimed
an interest in said water right but the
evidence disclosed no title in them. l
think that findings and decree OF per-
petual injunction should be entered,