Mayberry

There is in the county of Los Angeles a natural stream issuing out of the Cañada del Molino, and called Mill Creek, which flows southward from the mouth of the cañada towards the town of Alhambra. In the year 1860, the land embracing the source of Mill Creek, and extending to and including the mouth of the cañada, belonged to B. D. Wilson. South of and adjoining the land of Wilson, and including the lower course of Mill Creek, was a tract of government land, embracing 154 acres, occupied by E. J. C. Kewrnn. Mill Creek flowed across this tract and upon other vacant land of the United States. In its ordinary stages, and in its natural condition, the stream flowed but a short distance below the land occupied by Kewen. In order to irrigate higher portions of his land and get a head for conducting water to his house under pressure, it was necessary for Kewen to divert water from the *70 stream on the lands of Wilson, and it was also convenient for Wilson to conduct a portion, at least, of the w'ater used by him in irrigation across the lands occupied by ICewen. Under these circumstances, Wilson and wife on the one side, and ICewen and wife on the other, entered into the following…

I concur in the judgment in so far as it directs a modification of the decree, but am unable to concur with the majority in their construction of the contract between the Wilsons and the Kewen s. I am unable to see in that contract an intention on the part of the parties thereto to convey or partition their water rights. The object of the contract was to secure water for the tract of land then owned by the *77 respective parties. Wilson could not get it upon his land—portions of his land — without crossing the lands of Kewen. Kewen could not get it upon certain portions of his land, which be desired to irrigate, without the use of the ditch he had constructed on Wilson’s land. It seems that Wilson never used this ditch, but he could get water on his land lying east of Lake Vineyard by ditches, flumes, and aqueducts, through which to carry the water upon and across Kewen’s land. Each granted to the other an easement for the purpose of conducting the water upon his land. In fixing the time each was to use the water, they did not necessarily convey any water right; and in the absence of an intention to do so clearly appearing in express and unequivocal terms, it should not be held…