[Civ. No. 769. Third Appellate District.-October 22, 1910.] In the Matter of the Estate of WILLIAM JOHNSTON, Deceased. JOSEPHINE A. C. JOHNSTON, Appellant, v. ADMINISTRATOR OF ESTATE, Respondent.

ESTATES OF DECEASED PERSONS - DECREE OF DISTRIBUTION-APPEAL LACHES OF APPELLANT-DISMISSAL.Where an appeal was taken from a decree of distribution of an estate of a deceased person, and amendments to a proposed bill of exceptions were served more than two years prior to a motion to dismiss the appeal, and no other step was ever taken by the appellant, who failed to appear at the hearing of the motion to dismiss the appeal, it will be dismissed for unwarrantable laches and delay of the appellant, justifying the conclusion that it has been abandoned.

MOTION to dismiss an appeal from a decree of the Superior Court of Sacramento County, distributing the estate of a deceased person. Peter J. Shields, Judge.

The facts are stated in the opinion of the court.

C. M. Beckwith, for Appellant.

White, Miller & McLaughlin, for Respondent.

BURNETT, J.-A decree of distribution in the above-entitled estate was rendered in the superior court of Sacramento county on the fourth day of August, 1908. A notice of appeal therefrom was given October 3, 1908. A proposed bill of exceptions was filed September 14, 1908, and amendments thereto proposed by respondent, the administrator of said estate, and served upon appellant on the thirteenth day of October, 1908. No other step has been taken and no other proceeding had in the prosecution of said appeal. Appellant has manifestly been guilty of unwarranted laches and delay in the premises, and the conclusion is justified that the appeal was taken for delay and that it has since been abandoned.

The motion to dismiss, based upon the foregoing and other grounds, is not contested. There was, indeed, no appearance by appellant at the hearing.

The appeal is dismissed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 735. Third Appellate District.-October 22, 1910.]

WILLIAM H. SISK, Respondent, v. THOMAS CASWELL, Appellant.

ACTION TO QUIET TITLE TO IRRIGATING DITCH-EASEMENT OBSTRUCTION INJUNCTION-DAMAGES-SUFFICIENCY OF COMPLAINT.—In an action to quiet title to an irrigating ditch running through and upon defendant's land, as an easement thereon, which has been obstructed and injured by defendant, and to enjoin defendant from further obstruction or interference therewith, and to recover the damages suffered from such injury, it is held that the complaint states facts sufficient to constitute a cause of action and to entitle the plaintiff to the relief asked for, and that a general demurrer thereto was properly overruled.

ID. SPECIAL DEMURRER-QUESTION OF PARTIES-ASSIGNEES OF IRRIGATING RIGHTS-SHOWING OF IRREPARABLE INJURY.-Where the complaint avers that the water is valuable for irrigation, and that depriving plaintiff thereof, unless interference with the ditch is restrained, will result in irreparable injury to plaintiff, that plaintiff has sold portions of his land, and has assigned to his vendees irrigating rights from said ditch, and that a failure to restrain interference therewith will subject plaintiff to liability for damage and litigation on account of such assigned rights of irrigation, and that it would also result in irreparable injury to deprive plaintiff's remaining land from irrigation, a special demurrer raising, in different forms, the objection that such assignees are necessary parties to the action, was properly overruled. The complaint makes no averments calling for any relief to such assignees, and they are neither necessary nor even proper parties.

ID.-SUPPORT OF FINDINGS SUSTAINING COMPLAINT.-It is held that all findings relative to the cause of action stated in the complaint, including the charge that defendant prevented, and threatens to continue to prevent, the plaintiff and his grantees from using the ditch, are amply supported by the evidence.

ID. ISSUES AS TO VALIDITY OF RESERVATION OF DITCH IN PLAINTIFF'S DEED TO DEFENDANT-CONTRACT OF SALE SPECIAL AGREEMENT CONFLICT SUPPORT OF FINDING.-Where issues were raised by defendant's answer and cross-complaint as to the validity of a reservation of a ditch in favor of the plaintiff and his heirs and assigns, in a deed of land from plaintiff to defendant purchased under a contract of sale not providing therefor, a finding that the reservation of the ditch was specially agreed to, the ditch having been commenced before the money was fully paid and the deed signed, is held to be sufficiently sustained by the corroborated testimony

of the plaintiff, notwithstanding the conflicting testimony of the defendant, the question of veracity between them not being determinable by the appellate court.

ID.-AGREEMENT TO CONVEY LAND "FREE AND CLEAR OF ALL ENCUMBRANCES"-CONSTRUCTION.-An agreement in the contract of sale to convey the land "free and clear of all encumbrances" only relates to the encumbrances defined in section 1114 of the Civil Code, viz., "taxes, assessments and liens," the "liens" being such as are defined in section 1180 of the Code of Civil Procedure and section 2872 of the Civil Code. Such agreement is not inconsistent with a special agreement to reserve the easement of a ditch from the deed under such contract, which is not an "encumbrance" within its meaning. If the vendee desired to exclude such visible easement, he should have expressly so declared in the agreement, and his failure to do so implies that such was not his intention. ID. RULE AS TO VISIBLE PHYSICAL BURDENS-ABSENCE OF EXPRESS AGREEMENT-PRESUMED CONTRACT.-In cases where there is a physical burden upon property conveyed which is visible, there is a fair and reasonable presumption, in the absence of an express agreement, that both parties act with reference to this plain existing burden; that the vendor on the one hand demands and the vendee on the other hand pays, only the fair value of the land, as visibly encumbered; and such burdens by way of notorious physical easements are not really "encumbrances" within the meaning of the covenant against encumbrances, because the real subject matter of the dealing between the grantor and grantee is the land subject to the visible easements. ID.-PRESUMED CONTRACT NOT OVERCOME MEANS OF KNOWLEDGE OF DITCH AND OF CONTENTS OF DEED RESERVING EASEMENT.-Held, that the presumed contract is not overcome, but confirmed and strengthened by the evidence supporting the findings as to the agreement for the reservation of the ditch, and as to the means of knowledge by the defendant both of the existence of the ditch and of the reservation thereof in the deed.

ID. ESTOPPEL OF GRANTEE TO PLEAD IGNORANCE OF COVENANTS IN RECORDED DEED.—A grantee will not be permitted to plead ignorance of the covenants of a deed executed to him after it has been accepted and recorded, as a ground for defeating the force and effect of such covenants, where there is no evidence that the grantor in any way prevented a personal inspection of its contents by him. ID.-PRESUMED READING OF DEED BY GRANTEE-NOTICE FROM RECORD.Every person is presumed to read the deed under which he holds, and a failure to read recitals therein cannot avail him as a defense when it is sought to charge him with notice thereof. If a man will under certain circumstances be presumed to know the contents of a deed to another, how much more reasonable is it to presume that he has knowledge of the contents of his own deed. For the law will

not permit him to deny notice by insisting that he has not read the deed.

APPEAL from a judgment of the Superior Court of Stanislaus County, and from an order denying a new trial. L. W. Fulkerth, Judge.

The facts are stated in the opinion of the court.

Maddux & Maddux, for Appellant.

P. H. Griffin, for Respondent.

HART, J.-This controversy arises over an alleged claim of right by plaintiff to the use, for the purpose of irrigation, of water carried through a certain irrigating ditch running through and upon the land of the defendant. The purpose of the suit is to quiet plaintiff's title to and interest in said ditch, to enjoin defendant from interfering with or obstructing the exercise of his right to use the same, and for damages alleged to have been suffered by plaintiff for defendant's wrongful obstruction thereof.

The plaintiff obtained judgment as prayed for, and from said judgment and the order denying him a new trial the defendant has appealed.

It appears from the allegations of the complaint that, on the second day of April, 1904, the plaintiff was the owner in fee of a tract of land in Stanislaus county, described as the N. E. 14 of section 18, the S. 11⁄2 of said section 18, and, jointly with one W. F. Rose, of the N. E. 14 of section 19, all said land being in township 4 S., R. 9 E., M. D. B. & M.; that on the tenth day of December, 1904, plaintiff sold and conveyed to defendant said N. E. 14 of section 18, "reserving, as provided in said conveyance, 'the right to use the ditch now constructed on said premises to run water to other lands of plaintiff in the neighborhood, or to join on to said ditch and to extend the same for the same purpose,' which said right and interest in said land and ditch was, and was so stated in said conveyance, to extend to the heirs and assigns of plaintiff for any lands owned by him or which he had sold in the neighborhood which could be conveniently irrigated therefrom, and plaintiff ever since has been and now is the owner of and entitled to the

rights and interest in said land so reserved, except that plaintiff had, on the said second day of April, 1904, . . . and on the twenty-ninth day of April, 1905, and on the ninth day of May, 1905," sold and conveyed to a number of other parties (named in the complaint) respectively, certain parts, in separate and distinct tracts, of the described land remaining to him after the said sale and conveyance to the defendant. The said water ditch is described as being ten feet wide on the bottom and four feet deep; that the beginning of the center line of said ditch was at a point a fraction over twentyfour feet west of the northeast corner of said section 18, and, by certain meanderings, ran to a point four hundred and fiftyfive feet west of the "east boundary of said section." The complaint further declares that "at all times herein mentioned all the lands herein described were within the Turlock Irrigation District and entitled to receive therefrom their proportion of the water provided thereby under the laws pertaining thereto for irrigation purposes, and all of said lands were and are in the neighborhood of the land conveyed to defendant as aforesaid and of said water ditch, and could be conveniently irrigated therefrom, and said ditch was constructed for the purpose of such irrigation, and but for the acts of defendant herein alleged would have received such water, all of which was well known to defendant.”

It is charged that the defendant has wrongfully destroyed "the northerly five hundred and twenty-two and four-tenths feet of said ditch, to plaintiff's damage in the sum of $75, the cost of reconstruction thereof," and that defendant has prevented plaintiff "from entering upon, and from having and using said ditch, and making necessary repairs and improvements thereon, so as to use the same for irrigation of lands which he would have irrigated but for such acts of defendant, to plaintiff's damage in the further sum of $500," and it is further alleged that such damage will continue in a much greater sum each year that plaintiff is so prevented by defendant from having and using said ditch. It is alleged that defendant claims some estate or interest, adverse to plaintiff, "in said ditch and interest in the lands conveyed by plaintiff to defendant as aforesaid, which claim is without right," and that defendant denies plaintiff's right in said ditch, "and has