Opinion
Sac. No. 1473.
September 26, 1907.
APPEAL from a judgment of the Superior Court of Tulare County. W.B. Wallace, Judge.
The facts are stated in the opinion of the court.
Bradley Farnsworth, for Appellants.
Frank H. Short, and F.E. Cook, for Respondents.
This was an action to quiet title and settle conflicting claims to the use of the waters of Kings River. The Laguna de Tache Rancho is riparian to this stream. The ownership of the lands of the rancho was at the time of the agreement between the parties hereinafter to be considered in the defendant Fresno Canal and Irrigation Company. Another of the defendants, the Laguna Lands Limited, is the successor in interest of the Fresno Canal and Irrigation Company in and to these lands. At the time of the trial the parties to the litigation presented and filed their stipulation and agreement, wherein they undertook to settle and adjust their differences and respective claims to the use of the waters of the river. Plaintiffs are users of water in location lower upon the stream than defendants. They are referred to, and for convenience may be referred to, as the "lower ditch companies." The defendants are upper appropriators. One of the defendants, it is to be borne in mind, is also the owner of the Laguna de Tache lands. The agreement between the parties recited that the intention of the parties was to obtain a judgment pursuant to the agreement, fixing and determining the right of all the parties in reference to the right to the flow, use, and diversion of the waters of Kings River. With numerous other provisions relative to the accomplishment of this object, it provided that the Fresno Canal and Irrigation Company could divert the first one hundred cubic feet of water per second; that the lower ditch companies might then divert three hundred and thirty-nine cubic feet per second; thereafter, the Fresno Canal Company could divert the next one hundred cubic feet per second; then the lower ditch companies might divert certain additional water, after which the Fresno Canal Company had the right to divert the remainder of the water without limitation. As to the rights of the riparian lands of the Laguna de Tache grant, which lands at the time of this agreement, it will be remembered, were owned by the Fresno Canal and Irrigation Company, the clause of the agreement applicable to it is as follows: "It is understood and agreed that nothing in this agreement shall be taken to waive the right of the Laguna de Tache Rancho to the first 30 cubic feet of water flowing per second in said river for use upon said grant."
The court was asked to enter a decree in accordance with this agreement. It did so, and the decree is unassailed, saving in one particular. Plaintiffs proposed, as a form of decree embodying their construction of the language of the agreement last above quoted, a declaration in the precise form of the agreement to the effect that "Nothing in this decree shall be taken to waive the right of the Laguna de Tache Rancho to the first 30 cubic feet of water flowing per second in said river for use upon said Laguna de Tache Rancho," and adding thereto the following, "which said 30 cubic feet of water per second shall at all times be allowed to flow down for said Laguna de Tache Rancho in addition to the water which is to be allowed to flow down said river for said plaintiffs as aforesaid." The defendants objected to the insertion of this added clause in the decree. The trial court ruled with them, and embodied in its decree the exact language of the agreement and nothing more. From the court's refusal to enter the decree as they desired plaintiffs appeal. The point of the controversy is, of course, apparent. The Laguna de Tache Rancho is situated below the points of diversion of the defendants, one of whom owns the rancho, and its appurtenant water-rights. The plaintiffs, who are lower users and appropriators, desire to have the first thirty cubic feet of water allowed to flow down the river, presumptively for use upon the rancho, but, in case it be not so used, to become subject to their use at their lower points of diversion. It is, upon the other hand, insisted that the clause which plaintiffs sought to have inserted as a construction of the agreement is not within its terms and meaning, and therefore was properly rejected by the trial court. In this we think respondents are correct. The court was empowered to do nothing more than to frame a decree in accordance with the agreement. If the agreement was not full enough to dispose of all conflicting claims and rights, it was not proper for the court, under the circumstances, and when called upon merely to enter a decree in accordance with the agreement, to have supplemented that decree by the insertion of extraneous matters — matters which were not covered by the convention of the parties. It is apparent that the attempt of plaintiffs is to convert a declaration in the negative into a positive order. The agreement goes no further than to say that nothing in its language shall be taken as a waiver of the right of the rancho to the first thirty cubic feet of water. It is sought to transform this negative declaration into a positive order that this water be allowed to flow down to the rancho. The owner of the rancho is not asking this, and indeed upon this appeal is opposing it. So far as the owner of the rancho is concerned, its riparian rights are fully protected when the first thirty cubic feet of water for use upon said grant is permitted to flow when and as the use of the rancho requires it. No other person, and certainly no one wholly disconnected and not at all in privity with the rancho, has any cause of complaint. And finally, if the stipulation presented to the court, and upon which the decree was entered, does not fully express the intention of the parties, that is a matter for correction by appropriate action, and not, as is here sought to be done, by having the decree say something other and more than the agreement pronounces.
The decree appealed from is affirmed.
McFarland, J., and Lorigan, J., concurred.