Upon the denial of the petition for a rehearing in this case I deem it advisable to state one feature of the decision inTaylor v. Avila, 175 Cal. 203, [165 P. 533], which is not noticed in the opinion of the district court of appeal and which clearly distinguishes it from the present case. The facts in that case were, that originally Taylor owned eighty acres, being a west half of a northwest quarter, and Avila or his predecessors owned forty acres adjoining the north end of the eighty acres. Through these tracts a ditch was made leading from the canal to the north and it was in use for the purpose of irrigating both tracts. Afterward Taylor conveyed the north twenty-five acres of her eighty acre tract to one Gularte. Thereafter she continued to use the ditch as before, although no reservation of the right to do so had been made in her deed to Gularte for the twenty-five acres. Afterward Gularte sold the twenty-five acres to Avila and she joined with Gularte in the deed conveying said twenty-five acres to Avila.
The significant fact in the case is that she had no right or interest whatever in the twenty-five acres at the time she joined in the deed of Gularte to Avila, except her implied easement, consisting of her right to maintain the ditch *Page 54 through said twenty-five acres for the benefit of her remaining fifty-five acres of the eighty acre tract, and that her deed to Avila expressly purported to convey all ditch rights or interests in ditches for irrigating. The only effect the deed could have, so far as she was concerned, was to convey her right to the ditch. There was, therefore, no room for the operation of any implication that she reserved the ditch right, since, from the circumstances, it was obvious that the only possible intention on her part in joining in the deed was to convey to the defendant her right in the said ditch over the twenty-five acre tract. The case of Taylor v. Avila is, in all respects, parallel to that of Dixon v. Schermeier, 110 Cal. 582, [42 P. 1091], in which the same conclusion was reached, and it is not contrary to the decisions in Cave v. Crafts,53 Cal. 139; Quinlan v. Noble, 75 Cal. 250, [17 P. 69]; Jones v. Sanders, 138 Cal. 405, [71 P. 506]; Jersey Farm Co. v.Atlanta Realty Co., 164 Cal. 412, [129 P. 593]; Cheda v.Bodkin, 173 Cal. 7, [158 P. 1025].
All the Justices concurred.