Duckworth v. McKinlay , 158 Cal. 206 ( 1910 )

I concur.

There appears to have been some misapprehension by counsel concerning the passage in the opinion upon the former appeal in this case relating to the status of Duckworth as an appropriator or user of water not taken under any claim of riparian rights. Having written that opinion, I take this occasion to state more fully what I conceive to be the true doctrine on that point.

Duckworth was not, at the time of the first trial, the owner of the McKinlay lands, but held a lease thereon. The notices of appropriation posted by him stated that he proposed to use the water upon other lands, as well as upon that land. This reference to other lands may have been insufficient under the code, as a designation of the place of intended use, and for that reason his notice of appropriation may have been void, as to use on such other lands, or in toto, as a proceeding under the statute, but it was sufficient to show that he was claiming a right to divert water for use on lands other than the McKinlay lands, which might ripen into a right by prescription, and as to these other lands he would not be estopped by the McKinlay deeds to Smith and Montague. Now if Duckworth was at the time actually diverting water from the lake and using it on such other lands, not riparian, and the defendant company was also diverting water therefrom for use on non-riparian land, which, for the purposes of the discussion to which the passage from the former opinion was devoted, might have been the case as between them, in such a case the law is thoroughly settled that the one first in time is first in right. With respect to these possible antagonistic claims, therefore, Duckworth had the right to show, if he could, that his diversion and use on such other lands antedated that of the defendant, or any recent enlargement of its use by the defendant. We were then considering not the actual case, but the case as it might possibly develop under the pleadings, and it was this claim of right which was referred to in the former opinion in the expression, "with respect to the right thus claimed he has a status which entitles him to challenge the right of the water company." We did not say that he was entitled to prevail over the water company, but that he was in a position, with regard to or by virtue of the pleadings, to attack or to challenge the alleged right of the defendant, a position which made their alleged rights as users of water on non-riparian lands a material issue in the case, as presented in the pleadings. It seems from the record before the court on the present appeal that he does not now claim the right to use the water, except on the McKinlay lands. This being the case, all that was said on this subject on the previous appeal is inapplicable to the present case.

Perhaps something more should be said regarding the effect of a conveyance, by the owner of riparian land, of his riparian right therein, to another for non-riparian use. The court below seems to have been of the opinion that the riparian right consisted of the ownership of a definite quantity of the water of the lake, a quantity equal only to the amount which could be beneficially used on the riparian land concerned, and that the conveyance merely transferred to the grantees that quantity from the lake, leaving the riparian grantor free to take thereafter an equal or greater quantity therefrom and use it on the identical land, provided only that he must leave enough to furnish to the grantees the definite quantity which, by this theory, was conveyed, or, if the grantees were using less, then enough to provide for their actual use from time to time. This was not the legal effect of the conveyance. The riparian right exists solely because the land abuts upon the water. It is parcel of the land. It extends to all the water which may be reached from the land, and not to any specific particles or definite quantity or area of it. It is the right to make reasonable use and consumption of the water on the adjoining land and to a reasonable use of the water, in place, in connection with and for the benefit of the land. The water cannot be severed from the land and transferred to a third person so as to give him the title and right to remove it, as against other riparian owners. The grantor alone will be estopped by such a conveyance. The estoppel against him, with respect to the use and consumption of the water, or diversion from its natural position, must be as complete and extensive as was the right he conveyed. The McKinlay deeds conveyed the entire right to use this water for irrigation on these lands to the defendant's predecessors and it now belongs to the defendant and not to Duckworth. A man may not eat his cake and have it. A man who sells a right to do a thing cannot thereafter exercise the right himself, except by permission of the buyer, and it is immaterial that the buyer may not be using or exercising it. If the water company had obtained similar deeds from the owners of all the lands abutting upon the lake and its tributaries, it would have obtained a complete estoppel against such landowners which would have prevented them from interfering with any use it saw fit to make of the water, and such estoppel would undoubtedly extend to all the water of the lake. If, having this right of estoppel, it chose to use only a part of the water, or none of it, this neglect to use it would not give any of the owners the right to take that which the company suffered to remain unused. A judgment which purported to give such owners the unqualified right to use the water on their respective tracts, as against the company, would operate to deprive the company of the property which it had bought and paid for and to return that property to the person who sold it and received payment of the price. The same principle must apply when the estoppel has been obtained as to one, only, of the riparian owners. He is absolutely estopped to use any part of the water on the land, except as specified in the deed by which he is bound. These propositions are fully established by the following authorities:Alhambra etc. Co. v. Mayberry, 88 Cal. 74, [25 P. 1101]; Gould v. Stafford, 91 Cal. 155, [27 P. 543]; Gould v. Eaton, 117 Cal. 542, [49 P. 577]; Yocco v. Conroy, 104 Cal. 471, [38 P. 107]; Lux v.Haggin, 69 Cal. 300, 310, 392, [4 P. 919, 10 P. 674]; HelenaW. Co. v. Forbes, 62 Cal. 184, [45 Am. Rep. 659]; Zimmler v. SanLuis W. Co., 57 Cal. 222; Farnham on Waters, secs. 462, 463; Gould on Waters, secs. 207, 215.

Rehearing denied.

Beatty, C.J., dissented from the order denying a rehearing.