Mayberry v. Alhambra Addition Water Co.

Citations

• 125 Cal. 444
• 58 P. 68
• 1899 Cal. LEXIS 879

Syllabus

<p>Water Bights—Division of Stream—Future Deveeopmemt of Water — Ambiguous Contract — Practical Construction.— Where the owner of land in which a stream, arose contracted with an adjoining owner for a division of the stream so as to give to the latter, or his assigns, the right to the flow of the stream two days in each week through a certain ditch, or any other aqueduct conducted by the former, or his assigns, across the land of the latter, for which a right of way was given under the contract, to the former or his assigns, together with the right to the flow of the remainder of the stream, the possibility of the future development of additional water by the former, or his assigns, was a circumstance surrounding the parties, and the contract being ambiguous or doubtful in relation to water thus developed, the practical construction placed upon the contract by the parties in relation thereto must control.</p> <p>Id.—Use of Developed Water under Terms of Contract—Commingling—Estoppel.—Where the owner of the land upon which the stream arose conducted the natural water and that artificially developed, commingled together, in an aqueduct constructed across the lands of the adjoining owner, thereby bringing the whole flow within the literal terms of the contract, he cannot claim that the flow of the developed water across such lands was without right and not under the contract.</p> <p>Id.—Acquiescence of Parties—Bight to Use of Flow.—Both parties having acquiesced in the right to flow the developed water across the adjoining lands under the contract, the adjoining owner or his grantee has the right to use it two days each week, as part of the flow of the stream, so long as it is so conducted, in so far as may be reasonably necessary for the irrigation of the original adjoining tract.</p> <p>Id.—Wanton Diversion not Allowed.—The adjoining owner cannot make a wanton diversion of the water, to the injury of the other party, without benefit to himself.</p> <p>Id.—Right to Pe