Bailey v. Superior Court (142 Cal. App. 2d 47, 1956)

VAN DYKE, P. J.

This is a proceeding in certiorari to review an order made in a contempt proceeding arising out of violations of an injunctive decree theretofore made in a civil action. The civil action was brought in respondent court by Joseph S. and Avesta Ball, husband and wife, as plaintiffs, against Robert J. and Alberta Bailey, husband and wife, as defendants. Plaintiffs in the civil action are the real parties in interest here, and for convenience will be referred to as “real parties.” We shall call the Baileys “petitioners.” By the complaint in the civil action it was alleged and the answer admitted that petitioners were owners of certain real property, and that real parties were the owners of real property adjoining; that petitioners had formerly owned the whole and had granted to the real parties the portion now owned by the latter. It was further alleged that when real parties purchased from petitioners and took possession there existed and for long had existed a large ditch which conveyed water across the remaining land of petitioners and to the land deeded to real parties where the water was used for the benefit of real parties’ land; that the deed contained no express grant of easement; that the property of real parties was located in the Anderson-Cottonwood Irrigation District and that they had no other means of securing water therefor except from the canal of the irrigation district and by the use of the ditch. By a second count, it was alleged that real parties were then,in the process of purchasing an additional parcel of land from petitioners, which parcel likewise had been and was being served with needed water through the same ditch; that, although demand had been made upon petitioners that the deed conveying said latter parcel should contain an express provision for an easement for the continued transportation of water across the remaining land of petitioners, the petitioners had refused, claiming no such easement right existed. The cause proceeded to trial, and the court made findings of fact upholding the contentions of real parties. The court specifically found that by means of said ditch the property of real parties had received in times past an “accustomed flow of water sufficient for the irrigation of said parcels according to the use and practice of the Anderson-Cottonwood Irrigation District”; and that real parties had a right to receive such accustomed flow of water through the ditch for use on their property; that the right was an easement appurtenant to their two parcels of land even though the easement was not specifically described in either the deed to the first parcel, or in the contract of sale for the second parcel; “that the plaintiffs [real parties] have the right to the accustomed flow and allotment of water from the supply of the Anderson-Cottonwood Irrigation District to and upon said Parcels B and C at the point where said ditch crosses the north line of said Parcel C.” (Parcel C, as thus referred to, was the land owned by real parties.) It was further found that real parties were entitled to have said accustomed flow and allotment of water to their premises “at the said point where said ditch crosses the North line of said Parcel ‘C,’ and that the Defendants [petitioners] . . . should be restrained from interfering with the accustomed flow and allotment of water”; that the ditch referred to was and had been obviously, permanently and openly used for the benefit of the property of real parties. Attached to the findings was a plat showing the three parcels referred to and showing the existing ditch, its course through petitioners’ land, and its point of entry upon the land of real parties. A judgment was entered, pertinent portions of which follow: It was adjudged that real parties had “the right in perpetuity to receive, at the point where the existing ditch shown on Exhibit A crosses the north line of Parcel C, the accustomed flow of water in said ditch at said point, sufficient for the irrigation of Parcels B and C according to the use and practice of the Anderson-Cottonwood Irrigation District.” It was further decreed that petitioners and their successors in interest of any part of their retained property were “restrained in perpetuity from acts in derogation of aforesaid right.”

No appeal was taken from the aforementioned judgment, it became final, and thereafter a proceeding in contempt was initiated by real parties through filing in the action in which the judgment had been rendered an affidavit in support of a request for citation for contempt. The affidavit made apt references to the judgment in the civil action and particularly to that portion thereof which enjoined petitioners from committing any acts in derogation of the rights declared by the judgment and then asserted that, in derogation of those rights, petitioners had destroyed the existing ditch across their land; had constructed a new ditch along their boundaries to a point where the old ditch had entered upon the land of real parties; that the new ditch was inadequate; that the result had been real parties were not receiving and could not receive the accustomed flow of water delivered by the old ditch. The affidavit contained a prayer that petitioners be punished for disobeying the injunction. A contempt citation was issued and petitioners filed a verified answer. Therein they admitted that they had destroyed the old ditch, because, as they said, they had sold the land over which the ditch extended, and the land so sold was being used for residential subdivision purposes. They averred that in selling the land, they had reserved a right of way 10 feet wide for a ditch to serve real parties which took a different route from the old ditch and went along the westerly and southerly boundary of the property of petitioners to the point where the old ditch had entered the land of real parties. They alleged that they had made this ditch entirely adequate in size and grade to furnish more than the amount of water which real parties had received from the old ditch, and that under the judgment they had a right to change the ditch and to substitute a new ditch provided the new ditch properly transported water sufficient in quantity for the irrigation of the land of real parties.

Hearings were held in the respondent court, and an order was entered adjudging the petitioners guilty of contempt, in that they had “wrongfully and unlawfully, in derogation of the judgment and decree heretofore rendered, violated the terms thereof in that the plaintiffs [real parties] did not receive, at the point where the existing ditch shown on Exhibit ‘A’ of the judgment and decree made and entered herein on July 14, 1953, crosses the north line of Parcel C, the accustomed flow of water at said point sufficient for the irrigation of Parcels B and C, as provided in said decree.” Having adjudged petitioners guilty of contempt, the court did not stop, but went on to other matters. The court declared : That real parties were entitled to the accustomed flow in the ditch at the point of its entry to their lands in sufficient quantities so that they and their successors in interest might irrigate their property “east of the swale located on their property” in accordance with irrigation practices “in 7 hours”; that petitioners had sold and conveyed a portion of their property across which the original ditch had existed and were contemplating selling the rest, and that if this were done, real parties would have no adequate method of enforcing the judgment and decree; that the accustomed flow of water called for in the original decree was a quantity sufficient to irrigate real parties’ land east of the swale under normal former methods of irrigation in seven hours; that by reason of the acts of petitioners 27 additional hours were required to irrigate said property at a cost to real parties of $1.50 per hour or the total sum of $40.50; that a flow of 3% cubic feet per second was the quantity of water sufficient to irrigate real parties’ land east of the swale in seven hours. It was ordered that petitioners may purge themselves of contempt by (a) paying the cost of whatever had been done on the new ditch and by paying the plaintiffs $40.50 damages; that the accustomed flow of water as those words were used in the original judgment be defined as not less than 3% cubic feet of water per second; “that the duty to deli/oer water as set forth in the original decree be charged as a continuing duty against Defendants [petitioners], and their successors in interest”; that “so long as Plaintiffs [real parties] and their successors in interest shall require said water to irrigate for agricultural or horticultural use, the