Ortman v. Dixon

Citations

• 13 Cal. 33

Syllabus

<p>Query : Whether a water right, to pass the legal title from grantor to grantee, the premises being in adverse possession, must be conveyed by deed?</p> <p>Any contract executed which passes the equitable right to a ditch and the use of the water appurtenant to, or connected with, ihe ditch, as the property of the grantee, is enough to insure to him the rights for which he stipulated as against an adverse claimant.</p> <p>The difference between instruments sealed and unsealed is, at this day, a mere unmeaning and arbitrary distinction made by technical law, unsustained by reason. By the common law, the equitable title to realty may be conveyed by instrument not under seal, if otherwise sufficient; and this equitable title, accompanied by possession, is sufficient under our system to give the right of possession.</p> <p>Under our system, pi obably, an action can be maintained upon any title legal or equitable, or upon an instrument, se ded or unsealed, which entitles plaintiff to the possession of the property in dispute as against the defendant.</p> <p>In a proceeding in equity an equitable title is as good as a legal title, either for defense or recovery:</p> <p>A prior appropriate!' of the water of a stream for mill purposes is entitled to it to the extent appropriated, and for those purposes to the exclusion of any subsequent appropriation of it for the same or any other purpose.</p> <p>But the extent of the right depends on the nature and uses of the appropriation.</p> <p>If he suffers a portion of the water, or the body of it, after running the mill, to go on down its accustomed course, persons below may appropriate this residuum so as to make it a vested right.</p> <p>No distinction can be drawn between a mill owner and a miner as to their rights in appropriating water.</p> <p>Query: Whether a party, by erecting a mill and dam, becomes entitled to the water in specie, and whether he is entitled to anything more than the use of the water as a motive power—whe