Ham v. Santa Rosa Bank.

stead. But section 1260 of the first chapter relates to the selection and something more-it declares that the head of a family shall be entitled to select and claim a homestead not exceeding in value $5,000. By this language a different meaning is expressed, and a different subject referred to, from the meaning expressed and the subject referred to in the two sections of the second chapter. And assuming that a conflict exists between the sections or the chapters in which they are contained, each chapter must, according to the rules of construction in hand, be read by itself. So read and applied to the declaration of homestead before us, the declaration, appearing to have been made and filed in strict conformity with the provisions of chapter 2, assured to the declarant a homestead right to the premises described in his declaration. But his right in the premises was limited and defined by section 1260 of chapter 1. Of those premises he could only claim and hold as against his creditors to the extent of $5,000 in value. Beyond that value, the premises were subject to the claims of execution creditors; the provision of section 1260 was therefore subservient to the higher object of the entire title, namely, the protection by law of the homestead; and there is no inconsistency between the two chapters.

It cannot be denied that the entire legislation comprehended by the two chapters referred to was had for the purpose of carrying into effect the provisions of the Constitution expressed in section 15, article 11 of the Constitution of 1849, and section 1, article 17 of the Constitution of 1879, whereby the legislature was commanded to "protect by law from forced sale a certain portion of the homestead and other property of all heads of families." Exemption of a portion of the homestead premises from forced sale was therefore the special subject-matter and object of section 1260, chapter 1 of the homestead law. The entire property in such premises belonged to the owner; the title to it was vested in him; no legislation could divest him of it, and the premises were subject to the claims of his creditors, except so much of them as were exempted by law. But this exemption is not an attribute of the homestead it is only an incident. In fact, the homestead premises may exceed the value limit of the exemption; but the excess in value does not invalidate the selection, if it is otherwise valid under the provisions of sections 1262, 1263, supra. The excess, though used in fact as homestead, is always subject to the claims of the creditors

St. Helena Water Company v. Forbes.

of the owner, and the law has provided ample remedies for the enforcement of such claims. §§ 1245-1259, ch. 1, supra.

In its inception, then or thereafter, the substance of a homestead is a parcel of land on which the family reside. It is constituted by the attributes of residence and selection according to law. When these things exist so as to express its essence, the homestead becomes an estate in the premises selected exempted by law from forced sale. The premises may be of greater or less value than the interest in them exempted by law. If less it may increase; but increase in value over the exemption only works diminution in quantity of the homestead. The excess in value, though it may be homestead, in fact, is not the interest in the premises which is exempted from execution. It is, as part of the homestead, subject to the jus disponendi of the owner and the claims of his creditors. And where the excess is shown by the estimation of value at the time of the selection, or by the increase of value after selection, there is no evasion of statutory requirements. In either case the rights of creditors are secured, and the rights of no one are interfered with.

Supplying a town with water is a "public use" within the exercise of eminent domain, and the water of a creek may be condemned therefor.

ROCEEDING to condemn water. The opinion states the case.

PROCEEDING

McAllister & Bergin, for appellant.

Stanly, Stoney & Hayes, and B. S. Brooks, for respondent.

Ross, J. The plaintiff is a corporation organized under the laws of this State, for the purpose of supplying the inhabitants of the

St. Helena Water Company v. Forbes.

town of St. Helena with fresh water. The defendant is the owner of a tract of land through which run the waters of a certain creek called Hudson or York creek.

The purpose of the present proceeding on the part of the plaintiff is to condemn the waters of the creek for the purpose of supplying the inhabitants of the town with water; and the principal question in the case is, whether or not, under the laws of this Staae, the right of a private individual to enjoy the flow of water in its natural channel, upon or along his land, can be taken from him for such purpose.

There can be no sort of doubt that the supplying of the inhabitants of a townwith pure, fresh water, is one of the "public uses," in behalf of which the legislature has declared the right of eminent domain may be exercised. Code of Civil Proc., § 1238. Whether, with such declaration, the courts can in any case interfere, need not now be determined, since it is very clear that we would not be justified in holding that the supplying of the inhabitants of a town with pure fresh water is not a public use. It is equally clear that the plaintiff is authorized to exercise the right of eminent domain in behalf of suchuse. Section 1001 of the Civil Code provides: Any person may without further legislative action, acquire private property for any use, specified in section 1238 of the Code of Civil Procedure, either by consent of the owner or by proceedings had under the provisions of title 7, part 3, of the Code of Civil Procedure; and any person seeking to acquire property for any of the uses mentioned in such title is an agent of the State,' or a person in charge of' such use, within the meaning of those terms, as used in such title."

The only question about which we have had any serious doubt is whether the statute authorizes the condemnation of the particular kind of property here sought to be taken.

Section 1240 of the Code of Civil Procedure defines the property which is made subject to the exercise of the right of eminent domain, and section 1239 classifies the estates and right in lands subject to be taken for public use, as follows: "1. A fee simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams, and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine. 2. An easement, when taken for any other use. 3. The right of entry upon and occupation of lands, and the right

St. Helena Water Company v. Forbes.

to take therefrom such earth, gravel, stones, trees, and timber as may be necesssary for some public use."

It is sufficiently obvious, we think, that the property in question comes within the category of real property. "The rights of riparian proprietors," says Mr Washburn, in his work on Easements and Servitudes, pp. 276-7. (215), "though coming under the head of what are called 'natural easements,' are not in fact the result of any supposed grant, evidenced by long acquiescence on the part of a superior proprietor, of the flow of the water from his land to the land below. The right of enjoying this flow, without disturbance or interruption by any other proprietor, is one jure naturæ, and is an incident of property in the land, not an appurtenance to it, like the right he has to enjoy the soil itself, in its natural state, unaffected by the tortious acts of a neighboring land owner."

"It is inseparably annexed to the soil, and passes with it, not as an easement, nor as an appurtenance, but as parcel," said Chief Justice SHAW in Johnson v. Jordan, 2 Metc. 234; s. c., 37 Am. Dec. 85. See also Ang. on Watercourses, § 141; Brace v. Yale, 10 Allen, 443; Civil Code, §§ 14, 658, 662.

As no

The water therefore that runs over the defendant's land is a part and parcel of his land. The legislature has said that "easement” in land may be taken for such public use as is here involved. Does this mean only an easement owned by the person against whom the right to condemn is asserted? We think not. man can have an easement in his own land, it would be only such as he might own in lands of others that would be subject to be taken for public use, under such a construction of the statute as that. Yet the statute subjects all real property belonging to any person to the right of eminent domain, to be exercised in the cases and for the purposes therein stated. In other words, it authorizes the fee simple of all the real property belonging to any person to be taken when needed for any of the public uses enumerated in subdivison 1, section 1239, and an easement in all real property belonging to any person, to be taken when needed for any other public use. The question remains: By taking the water that in its natural channel runs over the defendant's lands, does the plaintiff take an easement in the lands of defendant? If the defendant should sell to the plaintiff the right thus to divert the water, there can be no doubt that he would sell an easement in his land. Owen v. Field, 102 Mass. 90; Amidon v. Harris, 113 id. 59; Wolfe v. Frost, 4 Sandf.

St. Helena Water Company v. Forbes.

Ch. 72; Cary v. Daniels, 5 Metc. 236; s. c., 41 Am. Dec. 532. And if the plaintiff, by adverse use, should acquire the right it is equally clear that the interest so acquired would be an easement in the land of the defendant. "In many cases, says Mr. Washburn in his work on Real Property, vol. 2, chap. 1, p. 321, "one landowner may acquire a right to apply the use of water upon his own lands so as essentially to impair its use by other proprietors, above or below him, and even to interfere thereby with the enjoyments of the land of another; as for instance, by stopping the water of a stream in his own land, and flowing back the same upon the land of a proprietor above him or diverting it so as to water it, or prevent its reaching the land of a proprietor below him in its natural quantiy. A right thus to interfere with the natural right to make use of water belonging to another where it is connected with the occupation of land, would constitute an easement in favor of the latter, as the dominant estate. Such an easement may be acquired like other easements, by grant, or by an adverse enjoyment so long continued as to raise a legal presumption of a grant." See also Wood Nuis., §§ 353, 354, 374; Ang. Watercourses, § 141.

If there is any difference in the nature of the same right when acquired by condemnation proceedings, we are unable to perceive it. In response to the suggestion that the proceedings taken in this case are in effect a violation of an injunction previously obtained by the defendant in respect to the same water, it is sufficient to say that the present plaintiff was not a party to the suit in which the injunction was awarded, and besides the right here asserted is to take the water upon making just compensation therefor.

Upon proof made, the court below found all of the facts essential to authorize the taking.

We must affirm the judgment and order.

MORRISON, C. J., and SHARPSTEIN, J., concurred.

So ordered.

MYRICK, J., concurring: As the right to have the water flow in the stream to defendant's land is an incorporeal hereditament appertaining to his land, and is therefore real property, and as all real property of an individual, or such interest therein as may be neces sary, may be taken by the right of eminent domain, in behalf of canals, aqueducts, flumes, ditches, 'or pipes for conducting water