San Diego Land & Town Co. of Maine v. Sharp

• Decision Date: 19 October 1899
• Docket Number: 525.
• Citation: 97 F. 394
• Parties: SAN DIEGO LAND & TOWN CO. OF MAINE v. SHARP.
• Court: U.S. Court of Appeals — Ninth Circuit

97 F. 394

SAN DIEGO LAND & TOWN CO. OF MAINE v. SHARP.

No. 525.

United States Court of Appeals, Ninth Circuit.

October 19, 1899

John D Works and Lewis R. Works, for appellant.

A Haines and L. Ward, for appellee.

Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

It appears from the record in this case that a suit was brought by the bondholders of the San Diego Land & Town Company of Kansas, a corporation, and Charles D. Lanning, receiver of that company, to foreclose a trust deed securing the payment of its bonds; that the trust deed was foreclosed, and the property sold to appellant herein. Pending the proceedings James M. Sharp, appellee herein, was permitted to intervene for the purpose of protecting his rights to water from the San Diego Land & Town Company of Kansas. The circuit court rendered a decree confirming appellee's right to the perpetual use of water from the water system of appellant and granted an injunction to prevent appellant from shutting off the water from the land owned by appellee, as it contended it had the right to do. Mandell v. Town Co. (C.C.) 89 F. 295. The Kansas corporation, under the constitution and laws of California, had acquired certain waters and water rights for sale and distribution, and had constructed a costly reservoir and extensive distributing system of pipes for the purpose of supplying water for irrigation and domestic uses to the inhabitants of National City and adjacent territory within the county of San Diego. A large portion of this territory was owned by the corporation. It subdivided and sold a portion of its land, and furnished purchasers thereof with water for the purposes aforesaid, through and by means of its pipe system. It also furnished water for similar purposes to the owners of neighboring lands not owned or sold by the corporation. Appellee owned 15 acres of land situate below and within 1,400 feet of one of the company's mains. On March 26, 1892, he entered into a written contract with the company, which reads as follows:

'Water Contract.

'This agreement, made by and between the San Diego Land & Town Company (a corporation), party of the first part, and J. M. Sharp, of the county of San Diego, state of California, party of the second part, witnesseth: That, for and in consideration of the payments and agreements hereinafter set forth, the party of the first part agrees to furnish to the party of the second part, subject to the general rules and regulations of the party of the first part relative to furnishing water for irrigation and other purposes which now are or shall or may be in force at any time during the existence of this contract, excepting so far as said rules and regulations may be affected and controlled by provisions of this contract, water for the irrigation of any number of acres of land, not exceeding fifteen (specifically described), for the term of five years, or any less number of years, from and after this date, at the option of the party of the second part. And, in consideration and as payment therefor, the party of the second part agrees to pay to the party of the first part, its successors or assigns, at its office in National City, California, * * * the sum of eleven and fifty one-Hundredths dollars per acre annually for each and every acre or part of an acre irrigated under this contract: provided, however, that at least seven and one-half acres must be paid for at the rate per acre above specified each and every year during the continuance of this contract. And in consideration of the furnishing to him for use upon said above mentioned and described real estate the water hereinbefore mentioned and provided for, for the period aforesaid and at the price aforesaid, the party of the second part agrees to furnish, connect, lay, and maintain in good order, at his own cost and expense, pipes of sufficient capacity and quality to conduct such water from the nearest main of the party of the first part, at such point as may be designated by the party of the first part, to said above-described tract of land, * * * during the continuance of this contract, and at the termination of this contract either to surrender and convey said connecting pipes to the party of the first part, or to remove the connection, and properly close the main of the party of the first part. And in consideration of the premises, and as a material and irrevocable part of this contract, the said party of the second part, his heirs, grantees, and assigns, hereby expressly waives and relinquishes all right and benefit under and by virtue of the provisions of section 552 of the Code of Civil Procedure of the state of California, and also hereby expressly agrees, as a contract and covenant running against said above-described real estate, that all duty, liability, and obligation of the party of the first part to furnish water for said above mentioned and described tract of land, or any part or parcel thereof, shall be governed and determined entirely by this contract, and that, at the expiration thereof, that all right, claim, and demand against the party of the first part, its successors or assigns, shall terminate and cease as absolutely as if this contract had never been executed, and said party of the first part had never furnished any water for use upon said tract of land.'

At the time this contract was made the regular rates of the company for furnishing water to consumers for irrigation purposes was $3.50 an acre per annum. This rate continued up to January 1, 1896, and was then raised to $7 per acre per annum. The contract, by its terms, expired March 26, 1897, but the company supplied appellee with water up to April 9, 1897. On May 12, 1897, Sharp delivered to the company a written communication, as follows:

'I, * * * J. M. Sharp, hereby tender to you the sum of $27.25, as and for the water rents for the quarter beginning April 1, 1897, at the rate for irrigation of land demanded by your corporation. This tender is for the continuance of the water supply for said quarter for the irrigation of the following land (describing it); and I hereby demand that the flow of water heretofore supplied from your system to said land be restored to it. * * * '

The company and the receiver refused the said tender of money, and in reply to Sharp's communication, on May 15, 1897, among other things, said:

'We are willing to extend the contract under which you have heretofore received water, and will, so far as we are able without further increasing our system, continue to supply water for the term of two years; you to be bound in every way by the contract under which you have heretofore taken water.'

Sharp declined to extend the contract, and claims that he is entitled to the continuance of the supply of water, under the constitution and laws of California, on paying the rates prescribed by law. The personal conversations had between Sharp and the agents of the water company with reference to procuring the water, in the first instance, should be considered as having reference only to the period of time expressed in the contract. Sharp complied with the terms of the contract during its existence. He waived the provisions of the statute, and paid the full amount he agreed to pay for the water up to April 1, 1897, which was a few days beyond the period of time...