Action to enforce specific performance of an agreement.

The judgment was for plaintiff, and this appeal is upon the judgment-roll.

The findings show that July 5,1883, Eliza D. Nichols was the owner of a tract of land in Solano count), bordering a natural watercourse known as “ Paddy Ranch creek.” She and her grantors had for ten years used the water of said creek for domestic purposes, and for irrigating about four acres of land, part of said tract.

That July 5, 1883, said Nichols executed a mortgage whereby she .mortgaged said land to one Boynton to secure a loan to her of seven thousand dollars and interest, which mortgage was on that day duly recorded.

That defendant, being a water company, desired to construct a reservoir on Paddy creek above the lands of Nichols, and with that view, November 5, 1883, entered into an agreement with said Nichols as follows:

The agreement was not recorded.

The defendant, in accordance with the terms of the agreement, proceeded to supply the Nichols ranch with water, furnishing the full amount that would flow through an inch tap, but laid no pipe to the Nichols ranch.

March 19, 1889, Boynton commenced an action to foreclose his mortgage, but defendant was not made a party to such suit.

A judgment and decree was duly entered foreclosing the mortgage, and the property sold in pursuance of it April 29, 1889, and no redemption having been made, a deed was executed accordingly, and the grantee went into possession. The foreclosure was in all respects regular, and conveyed the title of Eliza D. Nichols to the grantee.

Defendant continued to supply water in accordance with the contract until March 29, 1890, when it closed *314 the tap for that ranch, and refused to turn it on again, denying the plaintiff’s right.

Plaintiff owns the Nichols ranch through the foreclosure proceedings, and has no other title.

The answer denies some allegations of the complaint, and sets up certain facts from which appellant argues that there was a total failure of consideration for the defendant’s undertaking.

No rescission is averred or found. Defendant’s position at the trial seems to have been that the right of Eliza D. Nichols under the contract did not pass to plaintiff as an appurtenance.

It is not averred or found that defendant furnished water through a pipe on, or conducted to, the Nichols ranch. The agreement was to put a one-inch tap in its mains, from which Eliza D. Nichols could draw all the water required for certain purposes on the Nichols ranch. It is found that defendant did, “in accordance with the terms of said contract, and up to the time the tap was closed, supply and furnish from its main pipe, and through said tap, all the water necessary and required,” and that the amount so furnished and necessary was all that would flow through the one-inch tap placed on the main pipe by defendant. The water was used on the Nichols ranch for more than five years. We must presume that such an amount of water was conducted to the ranch in some kind of a channel or pipe. Whichever it was it would constitute an appurtenance to the Nichols ranch, and the right to it, including the flow of water from the main, passed under the conveyance to plaintiff. (Farmer v. Ukiah Water Works, 56 Cal. 14 .)

Appellant argues that in consequence of the foreclosure of the mortgage and the sale thereunder, it lost whatever riparian rights it acquired from Nichols; that it was a failure of consideration through the fault of the plaintiff and his grantors. This may be so, and, if so, would have entitled the defendant to rescind; but it did not offer to rescind and restore to plaintiff everything of value which it acquired under the contract. Counsel *315 says it has nothing which it received under the contract, because plaintiff owns all riparian rights which belonged to the Nichols ranch, as completely as Nichols did before the contract was entered into.

But this idea of restoration will not do. By the contract defendant had the right to appropriate all the waters of Paddy Ranch creek, and deprive the Nichols ranch of the flow which it was entitled to as riparian lands.

Whether defendant has as a fact appropriated such waters does not appear, and it was not necessary that it should be made to appear, because rescission was not pleaded. If the defendant has taken the water from the creek under the contract it must restore it as a condition of rescission. The mere fact that plaintiff can sue for it is not enough. If that were the rule, restoration need never be required, for mere rescission will always give that right. It must deliver the goods, except in some peculiar cases where it is excused.

Counsel says further, that to compel specific performance, under the circumstances, would be inequitable. By bringing the suit, plaintiff affirms the contract made by Nichols. Still, if defendant had made such issue at the trial I have no doubt the trial court would have required a conveyance of the riparian right as a condition of the relief granted.

Had plaintiff refused to confirm the transfer of riparian rights, I think relief should have been refused. I see no harm to anyone in requiring it now, and recommend that the judgment be modified to that effect. I think, however, appellant is not entitled to costs on this appeal.

Searls, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion, the judgment in said cause is modified so as to require plaintiff to convey to defendant his right to the water of the Paddy Ranch creek, belonging to him as owner of *316 the Nichols ranch, and said judgment is in all other respects affirmed. It is further ordered that respondent recover his costs on this appeal.

De Haven, J., Harrison, J., Fitzgerald, J.