Department 2. Appeal

from Superior | To the north lay lot 1, riparian to Big Butte Court, Butte County; H. D. Gregory, Judge. creek, purchased and owned by C. F. Lott. Action by the C. F. Lott Land Company against Eliza Hegan, as administratrix of the estate of James Hegan, deceased, successor of James Hegan. Judgment for plaintiff, and defendant appeals. Reversed.

L. G. Faulkner, of Chico, for appellant. W. H. Carlin, of Marysville, for respondent.

HENSHAW, J. Plaintiff claimed a right of way for a ditch across the land of defendant, and the additional right to carry therein 2,500 inches of water, measured under a 4-inch pressure, for use upon its lands. Defendant denied that her intestate's lands were under the burden of the servitude for such a ditch, denied the capacity of the ditch to carry 2,500 inches of water under 4-inch pressure, and asserted that its maximum capacity was 500 inches. Affirmatively, defendant asserted that the ditch was jointly constructed and was jointly owned by the predecessors in interest of plaintiff and of defendant, and the defendant's intestate's right is to all the water flowing in the ditch which may be needed or desired in connection with his land, for the purpose of irrigation, for watering stock, and for domestic use. The court found the ownership of the ditch in plaintiff and the ownership and right to carry therein for use upon its lands 2,500 inches of water. It found further that the right of way for this ditch was approximately 30 feet in width, and as a part of this right of way was the right to enter upon all the lands traversed by the ditch for the purpose of repairing and operating it. It found that plaintiff's predecessor in interest had alone constructed the ditch, and as to defendant's intestate held that he had no right to the use of any of the waters; but with the knowledge of and without objection upon the part of plaintiff and its predecessor in interest there had been taken from the ditch by defendant's intestate 10 inches of water for irrigation, and, excepting for this permissive use, defendant's intestate had no right to any of the waters. It further found that the reasonable value of this 10 inches of water was $1 per acre for the 20 acres upon which it was utilized, or $2 per miner's inch for the 10 inches so taken. The judgment followed these findings. Upon appeal the principal contention is that the findings are not supported.

To the southward lay lots 2, 3, and 4, and below that an unnumbered tract which for convenience we may call lot 5. This was nonriparian to the stream, and was also purchased by Mr. Lott. With that purchase ran water ditch to carry Big Butte creek water the grant of a perpetual right of way for a across the intervening lots 2, 3, and 4. Subsequently C. F. Lott purchased lot 4, thus leaving between his holdings of lot 1 to the north and lot 4 to the south lots 2 and 3 traversed by the water ditch. The ditch as originally constructed took the water from Butte creek at the northerly end of lot 1, carried it southwesterly roughly paralleling the line of the creek across lots 1, 2, 3, and 4, and onto the unnumbered lot which we have called 5. Unquestionably the easement conferred on lot 5 by this grant and the servitude placed upon lots 2, 3, and 4 were for the construction of a ditch and the carriage of water therein sufficient for the purposes of unnumbered lot 5. This ditch was also used to supply water to the northern lot 1, and of this, of course, defendant cannot and does not complain. But Mr. Lott was not given a right of way over lots 2 and 3 to convey water by this ditch to lot 4 which he acquired after his grant with the easement of a right of way for unnumbered lot 5. The defendant's intestate owned 118 acres of land in lot 2 or 3. It is conceded that this land was traversed by the ditch. In substance the testimony of Mr. Lott is that he exclusively and for his own private use constructed this ditch, aided in the work by certain tenants of his lands, and perhaps

though of this he did not know-by other landowners who were volunteers, but that he always had asserted and maintained his rights as sole private owner. When the ditch carried water, as it frequently did, beyond the needs of his land, he made no objection to his neighbors using this excess water on their own lands, but they never had used such water of right, and he always stopped any undue interference with his exclusive proprietary rights. He estimated that he used and needed for the irrigation of his lands 2,500 miner's inches of water, and in fact had enlarged the old ditch so as to carry that amount.

[1] Appellant contends that the ditch as originally built and as it crossed her land, and as it continued to exist until at or shortun-ly prior to the commencement of this action, was a small ditch incapable of carrying 2,500 inches of water, and in support of this points out the evidence that before the water in this ditch could reach the Hegan lands it had to pass through an iron pipe laid under a public highway, and that the maximum capacity of this pipe was only 500 miner's inches. Still further, that the servitude imposed upon defendant's lands was for the carrying of

To these facts it is necessary for an derstanding of the controversy to add that the lands now owned by plaintiff were formerly the lands of C. F. Lott, who appeared as plaintiff's principal witness upon the trial. Big Butte creek, from which these waters are taken, flows southwesterly. All of the lands affected by this litigation were originally held in single ownership. They were divided for the most part into lots and may

all for lot 4, which, it will be remembered, the record it cannot be said that respondent was acquired by Mr. Lott after the date of relied upon any other title. It is true that the grant to him of the right of way for a it appears that plaintiff and its predecessor water ditch for the use of unnumbered lot after the acquisition of lot 4 used the wa5. Consequently, as there is no evidence to ter carried by the ditch upon lot 4. But as show that unnumbered lot 5 ever has needed it appears that at this time the ditch had or used 2,500 inches of water, it is the im- a carrying capacity of 500 inches, and that position of an unjust and unwarranted servi- the construction and maintenance of this tude upon the Hegan lands to decree a right ditch had been acquiesced in by the owners of way for a ditch of that capacity with right of the land on lots 2 and 3 traversed by of free access and entry upon a strip of ap- it, it became a matter of indifference to them pellant's land 30 feet in width. No answer what was done with the water after it passed to this is attempted by respondent, other their lands. A different question is presentthan what is contained in the general state- ed when a decree is sought for a ditch with ment that plaintiff's evidence was as to the the carrying capacity of 2,500 inches with a use and need of 2,500 inches of water. It right of way 30 feet in width therefor. does appear that in 1911, about the time this action was brought, the ditch crossing the Hegan land was enlarged to a capacity of 2,500 inches, but it is not shown that the ditch ever carried that amount of water, and it is affirmatively shown that the pipe above referred to, whose carrying capacity was only 500 inches of water, remained unchanged. Appellant's position in this respect is well founded in the present state of the record. The extent of the servitude imposed upon the Hegan lands is measured by the terms of the grant. Civ. Code, § 806. Under the conditions shown to exist, since respondent's claim of title rests upon grant, and as that grant went only to the use of water and a right of way therefor upon unnumbered lot 5 (not herein including the subsequently acquired lot 4), before the court could justly find and decree a ditch right to 2,500 inches of water, evidence must be given to show the need of this amount for the purposes of unnumbered lot 5.

[2] Appellant relies upon Winslow v. City of Vallejo, 148 Cal. 723, 84 Pac. 191, 5 L. R. A. (N. S.) 851, 113 Am. St. Rep. 349, 7 Ann. Cas. 851, to support the contention that plaintiff's predecessor having selected a right of way and constructed and maintained a ditch of a given size, the servitude upon the Hegan land has thus been defined, without

right of respondent to increase the servitude by changing the conditions. But having regard to the nature of the grant, while it may well be that the course of the ditch having been once fixed by its construction, respondent would not be allowed to change its route, yet the grant contemplates the right to transport over the lands such water as may be necessary for the use of unnumbered lot 5, and if the quantity needed by the development of the land should be increased it would be quite within the purview of the grant that the capacity of the ditch should be correspondingly increased.

In the complaint the allegation merely is of ownership of the ditch and its water. The court finds in accordance with the allegation. But the evidence was all directed to an ownership under grant. In the present state of

Complaint is made of the finding of the court to the effect that appellant had no right to the use of any of the water carried by the ditch for the purposes of the Hegan land, and to the finding that the use which had actually been made of 10 inches of water was permissive merely. But upon this it need only be said that there is a sharp conflict of evidence; the testimony on behalf of plaintiff being that such use was permissively allowed as a neighborly act, and that it was not in the exercise of an asserted right. Complaint also is made of the finding of the court decreeing a permissive right to the use of 10 inches of water at a fixed charge. But, of course, appellant's grievance lies in the fact that she was not decreed this water as a matter of right. Respondent, rather than appellant, is injured by the decree granting a continuance of the use upon payment of the amount named. Appellant is not injured thereby, since there is no obligation upon her or her successors to take any of the waters. For the reasons given, the judgment appealed from is reversed.

We concur: MELVIN, J.; VICTOR E. SHAW, Judge pro tem.

EYMANN v. WRIGHT et al. (L. A. 4083.)

(Supreme Court of California. Dec. 31, 1917.) PUBLIC LANDS 135(1)-DESERT LAND ENTRY-CONTRACT TO CONVEY AFTER PATENT.

While Desert Land Act (Act March 3, 1877, c. 107, 19 Stat. 377 [U. S. Comp. St. 1916, §§ 4674-4678]) allows an assignment of an entry thereunder, contract of entrymen to convey aftallowing nullification of provision as to amount er obtaining patent is against public policy, as one can hold before patent.

Department 2. Appeal from Superior Court, Los Angeles County; Frank G. Finlayson, Judge.

Action by Dorothea H. Eymann against Charles D. Wright and others. From an adverse judgment, plaintiff appeals. Affirmed.

Andrew J. Copp, Jr., of Los Angeles, for appellant. Collier & Clark, of Los Angeles, for respondents.

Action by John Gray against Jennie B. "In the case of absolute assignment of such Huffaker and E. Huffaker. Judgment for entries, the assignee assumes the position of an Judgoriginal entryman, so far as his qualifications plaintiff, and defendants appealed. to take are concerned; and he, being the person ment was affirmed by the District Court of

Appeals, First District, and comes before I cannot be maintained. Both Huffaker and his the court for a rehearing. Affirmed.

wife received a portion of the money borrowed from the bank. Admittedly the money which is

The following is the opinion of the Dis- the subject of this action was received by E. trict Court of Appeals:

This action was brought by plaintiff to recover the sum of $1,105 from Jennie B. Huffaker and E. Huffaker, her husband, on a complaint for money had and received.

The record discloses that the controversy between the parties has been the subject of extended litigation, and shows in substance the following facts: Appellant E. Huffaker is an attorney at law, and was employed by the respondent, John Gray, to defend him upon a criminal charge amounting to a felony. Gray was convicted and sent to the state penitentiary. Upon his conviction Gray executed a deed conveying certain real property to Huffaker in trust for certain purposes not disclosed by the record. Subsequently, and while Gray was serving his sentence, Huffaker mortgaged the trust property and retained the moneys received thereunder, claiming the same as attorney's fees for defending Gray, and also for prosecuting certain civil suits in Gray's behalf. Thereafter demand was made upon Huffaker for a return of the moneys so received, and upon his refusal to pay suit was instituted by Gray for recovery of this sum. court in that matter found that Huffaker had received $1,800 as trustee for Gray and was entitled to $1,274.15 as attorney's fees, and that he had been paid by Gray the sum of $284, and that out of the $1,800 received as trustee Huffaker was indebted to Gray in the sum of $1,105.32, and gave judgment accordingly. In the present action defendant recovered judgment against Jennie B. Huffaker for the sum of $836.85, which, with interest and costs, aggregated the sum of $1,149.50. This appeal is from said judgment.

The

The trial court found that defendant E. Huffaker, while acting in the fiduciary capacity of attorney for plaintiff, John Gray, received for his use and benefit the sum of $836.85 and that he (Huffaker) wrongfully and fraudulently turned over and delivered this sum to Jennie B. Huffaker, his wife, which sum was used for the purpose of liquidating an indebtedness represented by a promissory note and mortgage executed by Huffaker and his wife upon separate property.

her

Huffaker as trustee for respondent while acting as his attorney, and used by Huffaker to liquidate the mortgage in question. Moreover, a reading of the entire record shows some evidence that Jennie B. Huffaker received the benefit of the payment and satisfaction of the mortgage with knowledge on her part that the same was obtained with money received by her husband through the hypothecation of the trust property. Having received the benefit of such money in the manner indicated, she should in good conscience be made to return the same to the plaintiff, from whom it was fraudulently appropriated.

The judgment is affirmed.

E. Huffaker and Rudolph Hatfield, both of Oakland, for appellants. John L. McVey, of Oakland, for respondent.

SHAW, J. Plaintiff recovered judgment for $1,149.20 upon a complaint against the defendants for money had and received to his use. The defendants appeal.

The two defendants are husband and wife. Prior to the transaction in question they had borrowed $2,300 of a bank, upon their promissory note, executed by both, secured by a mortgage upon the separate property of the wife. Seven hundred dollars of this money was used to improve the wife's property, and the remainder was appropriated by the husband to his own use with the wife's consent. The wife paid out of her own funds the $700 applied upon her property. Thereafter the husband paid the remainder due upon the mortgage upon the wife's property. In doing so he used $836.85 of money in his possession belonging to the plaintiff, John Gray, and held by said Huffaker in trust for Gray. The testimony of the wife, although vague and evasive, authorized a findThe judgment is based upon the theory that, ing by the court that she knew that the monJennie B. Huffaker having received the benefits of the moneys wrongfully obtained by her hus-ey so used by her husband in discharge of band, E. Huffaker, she should in good con- the mortgage was the money of Gray, and science be compelled to return the same to was held by her husband in trust for Gray. plaintiff, from whom it was fraudulently appropriated. It is not denied that the money fraudulently obtained was used for the purpose stated, but the contention of appellant is that, inasmuch as Jennie B. Huffaker did not in fact receive the actual moneys used in the transaction, but was the recipient only of the benefits flowing from the payment of the mortgage, an action for money had and received cannot lie against her. But in answer to this it may be said that an action for money had and received may be maintained whenever an equity arises from the circumstance that one has money which he ought to pay to another. Chung Kee v. Davidson, 102 Cal. 188, 36 Pac. 519; Smith v. Farmers' & Merchants', etc., 2 Cal. App. 377, 84 Pac. 348.

Upon these facts the plaintiff was entitled to judgment for the money of Gray so appropriated to the use of the defendants, with interest from the time of such appropriation. There is no serious dispute over the proposition that the evidence established all of the aforesaid facts except the knowledge of the wife concerning the trust money. While, as we have said, the evidence of the wife is not entirely satisfactory on the point, it is sufficient to support the finding on that subject. There is no force in the claim that the money was not applied to the use and benefit of the Appellants further contend that, even con- wife. The mortgage was an existing lien on ceding the application of this rule, nevertheless her property. Gray's money was used to the money borrowed by them from the bank was the debt of the husband, and not that of the discharge it, with her knowledge and consent. wife, who gave her separate property as seShe received a benefit from his money to the curity, and that by the execution of the mort- same extent as if she herself had received gage she became a mere indorser, and that, not the money and had applied it to pay the having received any benefit from the mortgage at the time of its execution, she was not bene- mortgage debt. Standish v. Babcock, 52 N.

There are no other points that re- lodge was a de facto corporation purporting quire notice. to act as such, it was entitled to the possession of the property.