Clyne

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,…