I dissent.
The majority have declared, first, that the interpretation by this court of the judgment in Ball v. Bailey rendered in the Superior Court of Shasta County in proceeding No. 18731 therein, which interpretation appears in Bailey v. Superior Court, 142 Cal.App.2d 47 [297 P.2d 795], was obiter dictum. While I do not agree that the construction of the trial court’s judgment by this court in the case referred to was obiter dictum, I will not discuss the matter for the reason that the judgment appealed from herein ought to be reversed because the construction of that judgment by the trial court in this case cannot be supported. The construction of that judgment is a question of law, and this court is not bound on appeal by the construction adopted in the trial court. (Brown v. Superior Court, 110 Cal.App. 464, 466-467 [294 P. 428] ; Verdier v. Verdier, 121 Cal.App.2d 190, 192 [263 P.2d 57].) The same rules of interpretation apply in ascertaining the meaning of a court order or judgment as in ascertaining the meaning of any other writing. (Ex parte Ambrose, 72 Cal. 398 [14 P. 33] ; Rinaldo v. Board of Medical Examiners, 123 Cal.App. 712, 715 [12 P.2d 32].)
*451“In interpreting a judgment, it is proper to refer to the circumstances surrounding its making — that is, to the condition of the cause in which it was rendered. The whole record may be examined, including the verdict or findings on which the judgment is based. And resort may be had to the pleadings and issues joined thereunder to explain and limit the language of a judgment.” (28 Cal.Jur.2d, Judgments, §77, p. 713.)
The judgment to be interpreted was rendered July 14, 1953, and it appears herein that at that time there was no other ditch running across the lands of the defendants Bailey and to the lands of the plaintiffs Ball. The judgment decreed:
“That plaintiffs [Ball] are owners and possessors of those certain parcels of real property hereunder described as Parcels B and C; that as such they and their successors in interest are entitled to and they are hereby awarded, 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.
“That defendants [Bailey] and their successors in interest of any part of that certain parcel of real property hereunder described as Parcel A be, and they are hereby, restrained in perpetuity from acts in derogation of aforesaid right.”
Exhibit A to the judgment is a plat showing Parcels A, B and C therein referred to and showing extending from A into C the “existing ditch.” The language and the plat in connection therewith, therefore, show with certainty the course of the ditch referred to through the lands of the parties. But the judgment is uncertain as to the perpetual right of the Balls since it speaks of that right as one “to receive, at the point where the existing ditch shown on Exhibit A crosses the north line of Parcel C,” water for irrigation of the Ball lands. Are the Balls given a bare right to receive water at that point somehow and through some undisclosed means of transporting water from some undisclosed source ? If so, it is a strange right, but since that is all the judgment says about it the necessity arises of considering the findings, and perhaps the pleadings, in order to determine with certainty just what the rights of the Balls were adjudicated to be. It is best to take the pleadings first. The complaint by the Balls on October 7, 1952, against the Baileys contains four causes of action. We are here concerned only with the first, second and fourth causes.
*452By the first count plaintiffs allege that they own a parcel of land particularly described in Exhibit B attached to the complaint (I will hereafter call that Parcel B); that the defendants were former owners of Parcel B and that plaintiffs took title from them January 9, 1951, at which time “a large ditch for conveying water to the property of the plaintiffs crossed the remaining property of the defendants”; that said ditch was obviously, permanently and openly used for the benefit of all the property of the defendants; and that said ditch ever since the taking of possession of Parcel B by the plaintiffs had been used by the plaintiffs for the purpose of irrigating Parcel B; that Parcel B is located in the Anderson-Oottonwood Irrigation District and plaintiffs have no other means of access for securing water from the district’s canal without the use of the aforesaid ditch; that the defendants have threatened to and will destroy the ditch, preventing the plaintiffs from securing water unless restrained. The second cause of action has to do with a second parcel of land, Parcel C. By the second count it is alleged that Parcel C has been purchased by the plaintiffs from defendants by a written agreement; that the money has been deposited in escrow but that the deed has not been delivered; that plaintiffs have demanded that the deed to be delivered contain a grant of an easement to carry water to Parcel C through the same ditch referred to in count one. The fourth cause of action is one for declaratory relief wherein the allegations of the other counts as to the ditch and the claimed rights of the plaintiffs to transport water thereby to their parcels of land, one already owned and one being purchased under written contract, are made a part by reference.
It is alleged that a dispute has arisen as to the “respective rights and duties and obligations of the parties hereto with respect to the use of the existing ditch more particularly referred to hereinabove,” and it is asked that a declaration of rights and duties of the respective parties be made. There can be no doubt but that this action was an action for the declaration of an implied easement resulting, and to result, from a conveyance of two parts of a large parcel of land, all of which had been used.under such conditions that the part when conveyed would be entitled to a servitude over the part retained. No other cause of action is stated. No other relief is asked. The answer admits that when plaintiffs took title and possession of the property they were buying, a large ditch for conveying water to that property crossed the remaining lands of the defendants and that the ditch was obviously, permanently and *453openly used for the benefit of the property conveyed. Further, that since the plaintiffs had so taken possession the ditch had been used by them for the purpose of irrigating their property. In short, the answer admits that when Parcel B was conveyed the servitude claimed passed with the conveyance whether referred to therein or not, and that a like result would follow on conveyance of Parcel C. Therefore, as to the basic right to the servitude, there was no issue, and the easement sought must perforce be adjudged unless affirmative defenses were pleaded and proved. But it was further pleaded in the answer that when they were negotiating for purchase of the property, the parties agreed that the ditch “described in Paragraph VI of the Complaint” would be abandoned when the defendants sold their adjoining land on the north, or subdivided the same into residential lots; and that it was further agreed that the plaintiffs could use the water from the ditch until such subdivision or sale. It was alleged that the defendants would not have sold the land without such understanding and agreement for the reason that they were already contemplating sale of their remaining property for subdivision purposes, and that the “permanent existence of an open ditch through Defendants’ land would totally destroy the value of their said land for said purposes, and for all purposes except farming and the pasturing of livestock.” Answering the allegation that they were threatening to discontinue the ditch, the defendants said that they would ‘1 discontinue said open ditch and destroy the same when they sell their adjoining land or subdivide the same.” The court found against these “confession and avoidance ’ ’ pleas.
Turning now to the findings of fact and conclusions of law, the court found that when the action was filed plaintiffs were the owners and in possession of Parcel B and also of Parcel C, except that with regard to Parcel C, “which forms a part of the hereinabove described property, ’ ’ title had not passed, but was in process of passing “as herein subsequently set forth and found.” The court found that prior to the filing of the action and before the sale of Parcels B and C the Baileys were the owners of land contiguous to that conveyed called Parcel A; that all of the property had been owned by the Baileys and used “as a whole, of which the portions sold by defendants to plaintiffs forms a part,” and was situated within the Anderson-Cottonwood Irrigation District; that “there was constructed and maintained by Defendants upon the premises a ditch for the purpose of conveying water for the irrigation *454of the lands of the Defendants including the tracts ‘B’ and ‘O’ now owned by Plaintiffs”; that it was true that by means of said ditch Parcels B and C, ■ and each of them, 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 said water entered Parcel C where said ditch crossed the north line of said parcel and passed thence across Parcels C and B by means of said ditch; that said ditch was in existence and used for the purpose of irrigating Parcels B and C at the time plaintiffs purchased said property from defendants; and that the right to receive the accustomed flow of water through said ditch for use on said property is an easement and appurtenance to Parcels B and C and conveyed as such appurtenance in the conveyances executed by the said defendants to plaintiffs, although not specifically described in said conveyances; and that the plaintiffs 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. It was further found as follows:
“It is true that at the time of taking possession of and purchasing the property from the defendants as hereinabove alleged, a ditch for conveying water from the supply of the Anderson-Cottonwood Irrigation District for the irrigation of said property entered on said property; that said ditch was obviously, permanently and openly used for the benefit of said property of plaintiffs; and that said ditch ever since the taking of possession of said property by plaintiffs has been used by the plaintiffs for irrigating the property of the plaintiffs.
“It is true that the property of the parties hereto is located in the Anderson-Cottonwood Irrigation District and the plaintiffs have no other means of access for securing water from the Canal of the Anderson-Cottonwood Irrigation District without the use of aforesaid ditch which in times past has conveyed water onto their property for the irrigation thereof.”
The court further found as follows concerning the ditch referred to: “ It is true that the location of the ditch in question exists and is set forth on Plaintiffs’ Exhibit 3, a photostatie copy of which is hereunto attached, marked Exhibit ‘A’ and by this reference made a part of these findings. ’ ’ This Exhibit “A” to the findings is the same exhibit designated as Exhibit “A” to the judgment. It is apparent that the right adjudicated as being in the plaintiffs was not merely a right to receive *455water at the point where the existing ditch referred to crossed the north line of Parcel C but included a declaration of a servitude in favor of Parcels B and C and against the remaining lands of the Baileys, consisting of the right to use the ditch to convey water from the canals of the irrigation district to the plaintiffs’ lands.
Although it is not necessary to refer to the trial court’s memorandum of decision since it is no part of the judgment roll, nevertheless it is interesting to read it since it was introduced in evidence in the trial of this ease. Said the trial court: “It is not disputed herein, and is therefore likewise found, that Parcel A has at all times been permanently and obviously used by defendants for the conveyance of irrigation water to Parcel C for the benefit thereof (by means of the ditch shown in blue on Exhibit A, and crossing both said parcels).” Concerning the defendants’ claims that so far as Parcel C was concerned which was, as the term goes, “in escrow,” the court said the terms of the escrow fixed the obligations of the parties, and since they did not include express directions that a conveyance should include the easements sued for, the matter, so far as said parcel being purchased was concerned, was foreclosed from inquiry. During the escrow a demand had been made on the title company that the deed to be prepared by them contain an express declaration of easement, which demand had been refused. The court said: “If the deed to Parcel B, in the absence of express reservation, conveyed the existing water right for the benefit of Parcel B; so likewise, for the same reasons (being those set forth at length above), the deed to Parcel C, in the absence of express reservations, conveys the water right for the benefit of Parcel 0. All terms of the escrow instructions appear to have been met, and there appears no reason why the Title Company should not forthwith close the escrow as it stands, thereby giving plaintiffs a deed which by implication of law conveys the water right. ’ ’
The construction of the old judgment made by the trial court in the case here on appeal is not supported by the record. In fact, it is diametrically opposed to that record.
While I believe that what I have said demonstrates that the interpretation placed upon the judgment by the trial court and by the majority is wrong and against the record, I am at a loss to understand what sort of right the trial court and the majority consider was adjudged to be in the Balls. It cannot be that as so interpreted the judgment gives any rights where-under the Balls can use the lands of the Baileys to convey *456water to the Ball lands, for the position taken throughout has been that the judgment did not declare such rights. It follows that if the easements claimed in the pleadings and by the pleadings admitted to exist were not adjudged, then the Balls obtained no right to obtain water by conveying it through or over any part of the Bailey property. Notwithstanding the admitted right, the judgment is now construed as refusing to declare the admitted right. What then has been declared ? A bare right to receive water on an owner’s land at a designated point on his boundaries or at any other point on his land is simply one of the rights in the “bundle of rights” which make up ownership. The right in the Balls to “receive” water on their lands was wholly outside the issues in the case. That right does not spring from the judgment, but from admitted ownership of the land. If then that is all that the judgment declared, the judgment itself, being wholly outside the issues, all of which appears in the judgment roll, is void and ought to be so declared. (Boar v. Smith, 201 Cal. 87 [255 P. 827], and cases cited therein.)
While the judgment, construed as it has been by the trial court and the majority, is void as being beyond the power of the court to declare and while for that reason the judgment appealed from which refuses to quiet title in the Balls to the easement across the Bailey lands could be affirmed, nevertheless I think the judgment cannot be so construed, but on the contrary that it declares the easement claimed in the present suit, and therefore the present judgment ought to be reversed.
A petition for a rehearing was denied January 13, 1961. Van Dyke, P. J., was of the opinion that the petition should be granted. Appellants’ petition for a hearing by the Supreme Court was denied February 8, 1961.