Tsunoda v. Young Sun Kow

CONCURRING OPINION OP

COKE, J.

I concur in the opinion of Mr. Justice Quarles to the effect that the decree dismissing the bill of complaint should be reversed. I do not understand that the opinion *670goes to the extent of holding that the surplus water from an artesian well does not belong to the land on which the well is situated or that upon a conveyance of the land that all the water, in the absence of an exception or reservation of a part thereof, would not pass to the grantee. It appears to me that in the lease between the Chinese Y. M. C. A. and the respondent the water, over and above what was reasonably necessary for the purpose of irrigating the lands demised to respondent and for his domestic purposes, was excepted from the operation of the lease and remained with the landlord. The provision in the lease that the lessee was to have the right to use as much of the water of the artesian well as was necessary for irrigation and domestic purposes was in effect a limitation upon- the amount of water to which he was entitled. I am convinced from a study of the lease and the other records before us that this was the clear intent and understanding of the parties at the time the lease in question was executed.