BIGGS DITCH CO v. JONGSTE ET AL (1943)

The defendants appeal from a judgment quieting plaintiff's title in and to an easement or right of way for a canal or ditch over its property and enjoining and restraining defendants' use or interference therewith.

Plaintiff corporation was organized on May 22, 1908, as a mutual water company, and ever since has been engaged solely in the distribution of water only to owners of its capital stock, the shares of which are declared to be appurtenant to the lands described in the stock certificate.

The water is purchased by each user directly from a separate corporation, the Sutter Butte Canal Company. The cost of distribution and upkeep of the distributing system by plaintiff is apportioned among the users on a per acre basis. No claim is made by plaintiff that it is a public utility or that such services as it performs are impressed with a public use.

The canals, ditches and laterals used by it were acquired by plaintiff as the successor in interest to the Butte County Irrigated Lands Company of Biggs. Title to its main canal, which traverses the property of the defendants, is claimed by the plaintiff by adverse possession.

The defendant Louise T. Jongste admits that she is not a shareholder in plaintiff corporation but asserts a right to take water from the canal by virtue of a provision contained in her deed to the land as follows: “Provided however, that all of the lands that are now being used as a ‘right of way’ to and for the ‘Main Canal’ of the Butte County Irrigated Land Company of Biggs, Cal., as it is now built on, along, and over the North and West lines of the above described premises are hereby reserved from the above land and the same is so reserved for and in consideration, that the owner or owners of the above described land and premises are at all times hereafter to have the privilege and right to use water from and out of said canal, for the purpose of irrigating of any and all of the said lands and premises, without payment for a Water Right to the Butte County Irrigated Land Company or any other Company or any companies for such a right, and the said Butte County Irrigated Land Company, shall not be required to pay or give any other compensation for their right of way, for their main canal, excepting a water right to and for the above named lands.”

The provision above quoted first appeared in a deed from one J. M. Hastings as grantor to C. E. Chatfield as grantee, under date of July 22, 1908, and is contained in all deeds subsequent to that date.

There is no record of the transfer from the Land Company to Hastings, nor is there a record of the conveyance of a right of way to the Land Company, although it appears that the canal was constructed in 1907, and has been used for irrigation purposes each season since 1908.

The only evidence of a conveyance or contract with or by plaintiff's predecessor in interest appears in the corporation's minute book, wherein authorization was given for the purchase of the ditches and rights of way, and the testimony of one witness that “The Biggs Irrigated Land Company signed the ditches over to us.”

In opposition to plaintiff's claim of adverse possession, defendants' only contention is that the record contains no showing of payment of taxes on either the canal or the water, and that under the rule as stated in Allen v. Allen, 159 Cal. 197, 113 P. 160, 161, such proof is essential, as “* * * an element to constitute such title, in addition to the showing of the other facts necessary to constitute it, he must prove, either that no taxes were levied and assessed upon the land or that he had paid all taxes which were levied thereon”, and that therefore such a showing becomes a prerequisite to the acquisition of title by adverse possession. Although this is the general rule, such requirements do not apply to an easement which is not separately assessed for the purpose of taxation. Humphreys v. Blasingame, 104 Cal. 40, 37 P. 804; Bernstein v. Dodik, 129 Cal.App. 454, 18 P.2d 983. And in the absence of proof that there has been an assessment, no proof of payment of taxes is necessary. Silva v. Hawn, 10 Cal.App. 544, 102 P. 952; Redemeyer v. Carroll, 21 Cal.App.2d 217, 68 P.2d 739. See, also, 112 A.L.R. 549.

Appellants also contend that the records introduced establish that their predecessor in interest, Hastings, held title in fee without either restrictions or servitudes, and that if plaintiff predicates its right to the canal by virtue of a grant from its predecessor in interest, then it must fail, for there is no record of such grant except the recognition contained in Hastings' deed and those subsequent thereto, all of which are conditioned upon the free use of the water to the various grantees of the land now owned by the defendant.

This argument is not decisive, as the trial court found that there was no grant to defendants' predecessors in interest of the right to the free use of the water from said canal, and further found that the title to the canal and ditch in question had enured to plaintiff by adverse use.

Appellants, however, advance the further contention that their right of free use of the water arises by virtue of the attachment of a presumption to the Hastings deed that the grant of the canal right of way was in consideration of the right of free use of water for irrigation purposes, and that all of the deeds introduced in evidence by plaintiff containing such reservation are admissions against interest which must be most strongly concluded against it. Under such a theory defendants cannot deny plaintiff's use of the canal for the statutory period, but on the contrary must admit such use by plaintiff in support of the contention of free use of the water by defendants' predecessors in interest, and thereby dispose of the question of such use by plaintiff.

Therefore, the sole remaining question for determination on this appeal resolves itself to a consideration of the defendants' right to such free use of the water.

As regards this issue the trial court discarded completely the question of the presumptive or actual grant of a right of use to the defendants by a specific finding to the contrary, and further found that the few sporadic uses by defendants' predecessors were insufficient to establish a prescriptive right to the use of the water. That the first finding by the trial court relative to a presumptive or actual grant of a right of use of the water in plaintiff's canal could not, as a matter of law, be otherwise, is apparent from the wording of the quoted provision of the deed in question. It is an ordinary grant deed which, after describing the land conveyed, reserves a certain right of way “for the main canal of the Butte County Irrigated Lands Company of Biggs, Cal., as it is now built on, along, and over the North and West lines of the above described premises.” Thereafter appears what only can be described as a recital by the grantor (Hastings) of the reason for such reservation. No words of conveyance to the grantee of the right to take water from such canal without charge, if such there were, can be found in said provision or elsewhere in the deed.

Every presumption is in favor of the findings made by the trial court, which in this case were predicated upon the positive testimony introduced on behalf of plaintiff that the water was used and claimed exclusively by it and its shareholders for a period in excess of thirty years, the total lack of evidence by defendants to rebut such testimony, and the insufficiency of the evidence to establish a right by prescription in defendants. Under such circumstances this court will not disturb such findings without a clear showing that such conclusions cannot be supported by any rational view of the testimony. O'Brien v. Markham, 37 Cal.App.2d 381, 99 P.2d 583.

The judgment is affirmed.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J., concur.