Hungarian Hill Gravel Mining Co. v. Moses

Citations

• 58 Cal. 168

Syllabus

<p>Water Right—-Mortgage—Improvements of Mortgaged Premises— Appurtenances.—G., being the owner'of certain mining claims known as the “Kelly & Co. Claims,” and of certain ditches and water rights appurtenant, mortgaged the same to the defendants. At the date of the mortgage, G. owned a ditch known as the “Kelly Ditch,” by which the waters of Gansner Creek were conducted to his land, but he afterwards constructed a new ditch on a higher level, and also a reservoir on his claim, to be used in connection therewith, and abandoned the old ditch and suffered it to fall out of repair. Atfterwards he conveyed to the plaintiff his claims—with an adjoining one that he had purchased—together with the new ditch and all water rights appurtenant; the deed providing that the conveyance was made subject to the mortgage of G. to the defendants. The defendants subsequently purchased the mortgaged premises at the foreclosure sale in an action brought against G. and the plaintiff to foreclose the mortgage. In an action by the plaintiff to quiet its title to the new ditch and reservoir, and the water rights used and connected with the same.</p> <p>Held: The construction of the new ditch and reservoir was for the purpose of employing to better advantage the use of the water rights covered by the mortgage, and they passed by the foreclosure sale to the defendant.</p> <p>Action to Quiet Title—Answer—Pleading—Judgment.—In an action to quiet title, where the answer consists of denials of the plaintiff’s allegations, and contains none of the elements of a cross-complaint, as distinguished from a defense to the plaintiff’s action, and contains no prayer for affirmative relief, it is error for the decree to award affirmative relief.</p>