Clyne v. Benicia Water Co.

Citations

• 100 Cal. 310
• 34 P. 714
• 1893 Cal. LEXIS 788

Syllabus

<p>Water Rights—Appurtenance to Land—Purchase Under MpicroAGE Foreclosure.—A water right acquired by the owner of land under an agreement with a water company relinquishing riparian rights to the water company, and providing that the water company should put a one-inch tap in its mains, from which the owner of the land could draw all the water required for domestic purposes and for irrigation of a portion of the land, which water was furnished in accordance with the terms of the contract and used on the land for more than five years, constitutes an appurtenance to the land, and the right to it, including the flow of water from the main, passed under a conveyance executed in pursuance of a decree foreclosing a mortgage made prior to the agreement with the water company.</p> <p>Id.—Rescission oe Contract—Restitution oe Riparian Rights.—If it be conceded that in consequence of the sale under the foreclosure of the prior mortgage, the water company lost the riparian rights it acquired from the owner of the land, and that it is entitled to rescind the contract for failure of the consideration, it could not effect such rescission without restoring to the purchaser under the foreclosure sale all of the riparian waters which it had in fact diverted from the land under the contract, a¿d it is not enough that such purchaser has the right to sue to recover such riparian waters.</p> <p>Id.—Specific Performance of Contract—Affirmance by Plaintiff— Condition of Relief—Conveyance of Riparian Right.—-An action by a purchaser claiming title under the foreclosure sale to enforce specific performance of the agreement with the water company, is an affirmance of the contract made after the execution of the mortgage between the owner of the land and the water company; but it is proper that the purchaser should be required to convey the riparian right to the water company, as a condition of relief.</p>