HARPER v. BUCKLES (1936)

This is an action to quiet title to water, water rights, pipe lines, reservoir rights, rights of way, and pumping equipment situated on and used to supply water to a certain tract of land known as Deer Lodge Park.

All parties claim through a common source of title, plaintiffs basing their claim through mesne conveyances by virtue of a sale under a second trust deed. Defendant Buckles bases his claim through mesne conveyances by virtue of a sale under a first trust deed. The first trust deed was placed on the land in 1923. The trust deed covered land as security and “also all rights, title and interest in and to a water appropriation for 25/1000ths cubic foot per second, from January 1 to December 31, of each year, according to Permit No. 1203, issued by the State Department of Public Works, November 13, 1922.”

Between 1923 and 1926 the property which is the subject matter of this litigation was constructed, installed, and placed on the land covered by the first trust deed. The second trust deed was placed on the land in 1926 and not only covered the land but also the water rights as set forth in the first trust deed. The second trust deed contains the following clause: “All things now or hereafter in any manner affixed to said real estate or its improvements for any purpose shall be deemed a part of the realty.” No appeal was taken from that portion of the judgment which quiets defendant's title to the land, and it is now final.

Plaintiffs' notice of appeal is as follows: “Notice is hereby given that the plaintiffs Wallace Scott Harper and Virginia Harper, his wife, hereby appeal to the Supreme Court of the State of California from that portion of the judgment entered in the above entitled action on December 4, 1934, which purports to quiet the title of the defendant Dennie D. Buckles as against said plaintiffs to all water, water rights, pipe lines, reservoir rights, and rights of way and pumping equipment, situated in and used to supply water to that certain tract of land described as Deer Lodge Park, in the County of San Bernardino, State of California, map of which Deer Lodge Park is recorded in Book 24 of Maps, pages 50 to 53 inclusive, records of said San Bernardino County.”

Plaintiffs claim title to the water rights, pipe lines, reservoir rights, rights of way, and pumping equipment, asserting their claim because of a lack of description in the first trust deed under which defendant claims and because of the general description thereof in the second trust deed above quoted.

The question presented is this: Do improvements placed on land subsequent to a mortgage or trust deed encumbrance placed thereon, become a part of the real estate and pass to the purchaser on foreclosure or sale when no mention or description of the improvements or contemplated improvements is made in the mortgage or trust deed? If they do, the judgment must be affirmed. If they do not, the judgment must be reversed.

If the answer is in the affirmative, then the sale under the first trust deed wiped out all claims under the second trust deed. In general, it may be said that subsequent improvements to the real estate feed the prior mortgage or trust deed and become part of the security for the payment of the debt. And this is so, although no mention is made thereof in the mortgage or trust deed.

Under the subject of mortgages, in 17 California Jurisprudence, in section 152 at page 865, the rule is stated as follows: “Since ‘a mortgage is a lien upon everything that would pass by a grant of the property’, a mortgage of real estate without any special provision to that effect will include all fixtures then on the property as a part of the freehold, and all fixtures or improvements attached to the land subsequent to the mortgage, although not mentioned or referred to therein.”

Passing to a case involving facts closely paralleling the case at bar we find the Supreme Court, in Stanislaus Water Company v. Bachman, 152 Cal. 716, 93 P. 858, 861, 15 L.R.A.(N.S.) 359, had this to say: “It is immaterial that the mortgages of Threlfall's land, under which Bachman acquired title, were executed before Threlfall obtained the water right. The water right, when acquired, became an easement appurtenant to the land (Farmer v. Ukiah Water Co., 56 Cal. [11] 13) and passed with it, upon the foreclosure sale in the same manner as any other appurtenance or fixture passes with the title and possession of land (Civ.Code, §§ 1084, 1104; Cave v. Crafts, 53 Cal. [135] 140; Farmer v. Ukiah Water Co., supra [56 Cal. [11] 13]; Cross v. Kitts, 69 Cal. [217] 221, 10 P. 409, 58 Am.Rep. 558; Smith v. Corbit, 116 Cal. [587] 591, 48 P. 725). It was an incident of the land, and would pass as such by a conveyance of the land, without express mention and without any reference thereto, such as by the use of the word ‘appurtenances' or otherwise. A conveyance of land upon a foreclosure sale must of necessity, at least as between the parties to the mortgage, carry with it a water right appurtenant to the land acquired and used by the mortgagor for the benefit of the land, although obtained after the execution of the mortgage and before the sale on foreclosure. We are cited to no authority for or against this proposition, and have not succeeded in finding any relating to it, but from the nature of the case it must be correct. Fixtures subsequently attached to mortgaged land pass to the purchaser at foreclosure sale, although not mentioned or referred to in the mortgage. Merritt v. Judd, 14 Cal. [59] 72; 2 Jones on Mortgages, § 1657; 1 Am. & Eng. Ency. of Law, 255. The same rule applies to improvements made by the mortgagor on mortgaged land. 1 Jones on Mortgages, §§ 147, 681; Union Water Co. v. Murphy's Flat Co., 22 Cal. [620] 631; Tibbetts v. Moore, 23 Cal. [208] 215. We are unable to perceive any material difference in principle, in this respect, between fixtures and improvements attached to or erected upon land and a water right attached to land as an appurtenance, such as that here involved, and we hold that it is governed by the same rules.”

This case has been cited often since its decision, and is, we think, good law today. Our conclusion is that the water, water rights, pipe lines, reservoir rights, rights of way, and pumping equipment, which is the subject of this appeal, became part of the land, were security for the payment of the debt secured by the first trust deed, passed to the purchaser on a foreclosure sale thereunder, now vests in defendant D. D. Buckles, and, that the trial court was correct in so holding.

Judgment affirmed.

TURRENTINE, Justice pro tem.

We concur: BARNARD, P. J.; JENNINGS, J.