Palvutzian

From a judgment in favor of the defendants the plaintiff appeals. The suit was for damages and for injunction to prevent interference with certain irrigating ditches and the flow of water over the defendants' land for which the plaintiff claimed an easement. The court found that prior to 1885 the predecessors of both the plaintiff and defendants owned in one body the lands now owned by them severally. While the lands were held in single ownership two irrigation ditches or canals were constructed across the tract. These ditches were connected with the main ditch or canal of the Fresno Canal and Land Corporation's system of irrigating ditches. Since their construction they have been the only source from which water can be obtained for the irrigation of plaintiff's land, except by the installation of a pumping plant or the acquisition of a right of way for ditches over other property. The ditches were at all times since 1885 the visible and obvious means of transporting water to the lands now owned by the plaintiff. For two or three years between 1885 and 1908 they were not used, but they were used continuously for five years commencing in 1909. In 1908 the owner of the entire tract…

Upon the denial of the petition for a rehearing in this case I deem it advisable to state one feature of the decision in Taylor v. Avila, 175 Cal. 203 , [ 165 P. 533 ], which is not noticed in the opinion of the district court of appeal and which clearly distinguishes it from the present case. The facts in that case were, that originally Taylor owned eighty acres, being a west half of a northwest quarter, and Avila or his predecessors owned forty acres adjoining the north end of the eighty acres. Through these tracts a ditch was made leading from the canal to the north and it was in use for the purpose of irrigating both tracts. Afterward Taylor conveyed the north twenty-five acres of her eighty acre tract to one Gularte. Thereafter she continued to use the ditch as before, although no reservation of the right to do so had been made in her deed to Gularte for the twenty-five acres. Afterward Gularte sold the twenty-five acres to Avila and she joined with Gularte in the deed conveying said twenty-five acres to Avila. The significant fact in the case is that she had no right or interest whatever in the twenty-five acres at the time she joined in the deed of Gularte to Avila, except…