reservation exception in California

1988(See Cappaert v. United States, supra, 426 U.S. at pp. 138-142 [48 L.Ed.2d at pp. 534-536]; United States v. New Mexico, supra, 438 U.S. at p. 698 [57 L.Ed.2d at p. 1056].) The United States thereby acquires a "reserved" water right (subject to whatever rights may have vested while the lands were in the public domain) which vests on the date of the reservation and is superior to the rights of future appropriators. ( Cappaert v. United States, supra, 426 U.S. at p. 138 [48 L.Ed.2d at p. 534].) The reservation doctrine thus constitutes an exception to the plenary authority which the states other

1988(See Cappaert v. United States, supra, 426 U.S. at pp. 138-142 [48 L.Ed.2d at pp. 534-536]; United States v. New Mexico, supra, 438 U.S. at p. 698 [57 L.Ed.2d at p. 1056].) The United States thereby acquires a "reserved" water right (subject to whatever rights may have vested while the lands were in the public domain) which vests on the date of the reservation and is superior to the rights of future appropriators. ( Cappaert v. United States, supra, 426 U.S. at p. 138 [48 L.Ed.2d at p. 534].) The reservation doctrine thus constitutes an exception to the plenary authority which the states other

2021The closest the Act comes is section 1395, which reserves to state law only the ‘supervision or control’ (1) ‘over the practice of medicine or the manner in which medical services are provided,’ (2) ‘over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services,’ or (3) ‘over the administration or operation of any such institution.’ ( 42 U.S.C. § 1395 .) Even if we assume that Part C’s later-enacted express preemption clause did not supersede this reservation 22 clause . . . , the reservation clause does not purport to pr

2021The closest the Act comes is section 1395, which reserves to state law only the ‘supervision or control’ (1) ‘over the practice of medicine or the manner in which medical services are provided,’ (2) ‘over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services,’ or (3) ‘over the administration or operation of any such institution.’ ( 42 U.S.C. § 1395 .) Even if we assume that Part C’s later-enacted express preemption clause did not supersede this reservation 22 clause . . . , the reservation clause does not purport to pr

2015Plaintiffs also cite Carlsbad Mutual Water Co. v. San Luis Rey Development Co. (1947) 78 Cal.App.2d 900 for the general and unremarkable proposition that where a grantor transfers all water rights relating to its property subject to a reservation of the right to use riparian waters for "irrigation, domestic and other purposes" (id. at p. 904) on the land, the extent of riparian rights "must be measured by what was reserved or excepted by that clause." (Id. at p. 910.) Their reliance on this case is misplaced, however, as it offers no interpretation as to the meaning or scope of the reservation

1991Moreover, that clause is very similar to the reservation clause of the waterfront compact considered by the Supreme Court in DeVeau [v. Braisted, 363 U.S. 144 , [ 80 S.Ct. 1146 , 4 L.Ed.2d 1109 ] (I960)].

1991Moreover, that clause is very similar to the reservation clause of the waterfront compact considered by the Supreme Court in DeVeau [v. Braisted, 363 U.S. 144 , [ 80 S.Ct. 1146 , 4 L.Ed.2d 1109 ] (I960)].

1990The court stated: “FUSFSPA is the change. 5124 is the response to FUSFSPA to close the gap to make sure that nobody is penalized.” 6 “It is true as a general principle of law after the trial court has divided the property, and the judgment has become final, the court loses jurisdiction to modify or alter the division made. [Citation.] An exception to this general rule, however, arises in cases where the court expressly reserves jurisdiction to modify a property award. [Citations.]” (Mueller v. Walker, supra, 167 Cal.App.3d at pp. 605-606.) 7 At oral argument Audrian requested reinstatement of

1972(See Lemon v. Lemon (1918) 273 Mo. 484 [ 201 S.W. 103 ].) While this approach did prevent the reserved interest from passing to the grantee, it did not achieve the grantor’s intention of vesting that interest in the third party.

1972(See Lemon v. Lemon (1918) 273 Mo. 484 [ 201 S.W. 103 ].) While this approach did prevent the reserved interest from passing to the grantee, it did not achieve the grantor’s intention of vesting that interest in the third party.

1972Similarly, in Smith v. Kraintz (1962) 201 Cal.App.2d 696 [ 20 Cal.Rptr. 471 ], the court upheld a reservation to the general public because the intent to dedicate can be shown by even an ineffective instrument. 5 (See generally Harris, Reservations in Favor of Strangers to the Title, supra, 6 Okla.L.Rev. 127, 139-150.) Some courts, like the court in Butler v. Gosling, supra, mitigate the harshness of the rule by treating the reservation as an exception that retained the interest in the grantor.

1972Similarly, in Smith v. Kraintz (1962) 201 Cal.App.2d 696 [ 20 Cal.Rptr. 471 ], the court upheld a reservation to the general public because the intent to dedicate can be shown by even an ineffective instrument. 5 (See generally Harris, Reservations in Favor of Strangers to the Title, supra, 6 Okla.L.Rev. 127, 139-150.) Some courts, like the court in Butler v. Gosling, supra, mitigate the harshness of the rule by treating the reservation as an exception that retained the interest in the grantor.

1969Code, §715.2; Barton v. Thaw, 246 Pa. 348 [ 92 A. 312 , Ann.Cas. 1916D, 570]; 2 Within, Summary of Cal. Law (7th ed. 1960) Real Property, p. 987 et seq.) The trial judge originally construed the paragraph to be a reservation or exception of the metals and minerals in favor of the grantors with a possibility of reverter.

1969Code, §715.2; Barton v. Thaw, 246 Pa. 348 [ 92 A. 312 , Ann.Cas. 1916D, 570]; 2 Within, Summary of Cal. Law (7th ed. 1960) Real Property, p. 987 et seq.) The trial judge originally construed the paragraph to be a reservation or exception of the metals and minerals in favor of the grantors with a possibility of reverter.

1963Co. v. Onyx Refining Co. (Tex.Civ.App.) 241 S.W.2d 177, 180 ; Vinson v. Fentress, 33 Tenn.App. 359 [ 232 S.W.2d 272, 276 ] ; 32A Words and Phrases (perm. ed.) p. 101.) It will be noted that there is no comma after the word “conduit” in the reservation clause, and this lends support to the contention of appellants that the qualifying language following it refers to “conduit” only and does not control the earlier words ‘1 pipe ’ ’ and ‘1 pipeline. ’ ’ With respect to statutory construction, it is said in 45 California Jurisprudence 2d, Statutes, section 137, pages 644-645: “Where there are uncer

1963Co. v. Onyx Refining Co. (Tex.Civ.App.) 241 S.W.2d 177, 180 ; Vinson v. Fentress, 33 Tenn.App. 359 [ 232 S.W.2d 272, 276 ] ; 32A Words and Phrases (perm. ed.) p. 101.) It will be noted that there is no comma after the word “conduit” in the reservation clause, and this lends support to the contention of appellants that the qualifying language following it refers to “conduit” only and does not control the earlier words ‘1 pipe ’ ’ and ‘1 pipeline. ’ ’ With respect to statutory construction, it is said in 45 California Jurisprudence 2d, Statutes, section 137, pages 644-645: “Where there are uncer

1963Co. v. Onyx Refining Co. (Tex.Civ.App.) 241 S.W.2d 177, 180 ; Vinson v. Fentress, 33 Tenn.App. 359 [ 232 S.W.2d 272, 276 ] ; 32A Words and Phrases (perm. ed.) p. 101.) It will be noted that there is no comma after the word “conduit” in the reservation clause, and this lends support to the contention of appellants that the qualifying language following it refers to “conduit” only and does not control the earlier words ‘1 pipe ’ ’ and ‘1 pipeline. ’ ’ With respect to statutory construction, it is said in 45 California Jurisprudence 2d, Statutes, section 137, pages 644-645: “Where there are uncer

1954(See Pimentel v. Hall-Baker Co., 32 Cal.App.2d 697 [ 90 P.2d 588 ]; Callahan v. Martin, 3 Cal.2d 110 [ 43 P.2d 788 , 101 A.L.R. 871 ].) To the same effect is Dabney v. Edwards, 5 Cal.2d 1 [ 53 P.2d 962 , 103 A.L.R. 822 ], which holds that a profit a prendre, an incorporeal hereditament, is an estate in real property.

1954(See Pimentel v. Hall-Baker Co., 32 Cal.App.2d 697 [ 90 P.2d 588 ]; Callahan v. Martin, 3 Cal.2d 110 [ 43 P.2d 788 , 101 A.L.R. 871 ].) To the same effect is Dabney v. Edwards, 5 Cal.2d 1 [ 53 P.2d 962 , 103 A.L.R. 822 ], which holds that a profit a prendre, an incorporeal hereditament, is an estate in real property.

1954(See Pimentel v. Hall-Baker Co., 32 Cal.App.2d 697 [ 90 P.2d 588 ]; Callahan v. Martin, 3 Cal.2d 110 [ 43 P.2d 788 , 101 A.L.R. 871 ].) To the same effect is Dabney v. Edwards, 5 Cal.2d 1 [ 53 P.2d 962 , 103 A.L.R. 822 ], which holds that a profit a prendre, an incorporeal hereditament, is an estate in real property.

1954(See Pimentel v. Hall-Baker Co., 32 Cal.App.2d 697 [ 90 P.2d 588 ]; Callahan v. Martin, 3 Cal.2d 110 [ 43 P.2d 788 , 101 A.L.R. 871 ].) To the same effect is Dabney v. Edwards, 5 Cal.2d 1 [ 53 P.2d 962 , 103 A.L.R. 822 ], which holds that a profit a prendre, an incorporeal hereditament, is an estate in real property.

1954(Stone v. Stone, 141 Iowa 438 [ 119 N.W. 712, 714 , 18 Ann.Cas. 797, 20 L.R.A.N.S. 221 ].) Only a cursory examination of cases is necessary to indicate the terms reservation and exception often are used interchangeably and that their distinction is technical, “slight and shadowy.” (Van Slyke v. Arrowhead etc. Power Co., 155 Cal. 675, 679 [ 102 P. 816 ].) It is clear that the phraseology employed in the instrument in question is not controlling nor determinative of the question of whether a reservation or exception is created.

1954(Stone v. Stone, 141 Iowa 438 [ 119 N.W. 712, 714 , 18 Ann.Cas. 797, 20 L.R.A.N.S. 221 ].) Only a cursory examination of cases is necessary to indicate the terms reservation and exception often are used interchangeably and that their distinction is technical, “slight and shadowy.” (Van Slyke v. Arrowhead etc. Power Co., 155 Cal. 675, 679 [ 102 P. 816 ].) It is clear that the phraseology employed in the instrument in question is not controlling nor determinative of the question of whether a reservation or exception is created.

1954(Coon v. Sonoma Magnesite Co., 182 Cal. 597 [ 189 P. 271 ].) In the instant conveyance both “excepting” and “reserving” were used.

1954(Coon v. Sonoma Magnesite Co., 182 Cal. 597 [ 189 P. 271 ].) In the instant conveyance both “excepting” and “reserving” were used.

1954(See Pimentel v. Hall-Baker Co., 32 Cal.App.2d 697 [ 90 P.2d 588 ]; Callahan v. Martin, 3 Cal.2d 110 [ 43 P.2d 788 , 101 A.L.R. 871 ].) To the same effect is Dabney v. Edwards, 5 Cal.2d 1 [ 53 P.2d 962 , 103 A.L.R. 822 ], which holds that a profit a prendre, an incorporeal hereditament, is an estate in real property.

1954(See Pimentel v. Hall-Baker Co., 32 Cal.App.2d 697 [ 90 P.2d 588 ]; Callahan v. Martin, 3 Cal.2d 110 [ 43 P.2d 788 , 101 A.L.R. 871 ].) To the same effect is Dabney v. Edwards, 5 Cal.2d 1 [ 53 P.2d 962 , 103 A.L.R. 822 ], which holds that a profit a prendre, an incorporeal hereditament, is an estate in real property.

1947(Bloss v. Rahilly, 16 Cal.2d 70 [ 104 P.2d 1049 ].) Of course, before the plaintiff could invoke the power of a court of equity to restrain the diversion of water above its lands, it would be necessary for it to show first, that there was a wrongful diversion of water above its lands, and second, that the amount wrongfully diverted would be rightfully used by plaintiff and that the water is being used or would be used for reasonable and beneficial purposes.

1947(Bloss v. Rahilly, 16 Cal.2d 70 [ 104 P.2d 1049 ].) Of course, before the plaintiff could invoke the power of a court of equity to restrain the diversion of water above its lands, it would be necessary for it to show first, that there was a wrongful diversion of water above its lands, and second, that the amount wrongfully diverted would be rightfully used by plaintiff and that the water is being used or would be used for reasonable and beneficial purposes.

1946But it may operate, when so intended by the parties as an exception from the thing granted.’ ” The same rule is stated in Elliott v. McCombs (1941), 17 Cal.2d 23 [ 109 P.2d 329 ], where supporting cases are cited, and in 39 American Law Reports 128.

1946But it may operate, when so intended by the parties as an exception from the thing granted.’ ” The same rule is stated in Elliott v. McCombs (1941), 17 Cal.2d 23 [ 109 P.2d 329 ], where supporting cases are cited, and in 39 American Law Reports 128.

1941Code; First Bond & Mortgage Go. v. Malouf, 37 Cal. App. (2d) 74 [ 98 Pac. (2d) 824 ]; Williams v. Silverstein, 213 Cal. 269 [ 2 Pac. (2d) 165 ]; Lynch v. Melby, 129 Cal. App. 646 [ 19 Pac. (2d) 49 ] ; Harding v. Robinson, 175 Cal. 534 [ 166 Pac. 808 ]; Estate of Gaines, 15 Cal. (2d) 255 [ 100 Pac. (2d) 1055 ].) This case does not come under the first or second clauses above mentioned, but under the third clause, and is based upon the claim that an ambiguity exists in the reservation clause in the contract and deed.

1941Code; First Bond & Mortgage Go. v. Malouf, 37 Cal. App. (2d) 74 [ 98 Pac. (2d) 824 ]; Williams v. Silverstein, 213 Cal. 269 [ 2 Pac. (2d) 165 ]; Lynch v. Melby, 129 Cal. App. 646 [ 19 Pac. (2d) 49 ] ; Harding v. Robinson, 175 Cal. 534 [ 166 Pac. 808 ]; Estate of Gaines, 15 Cal. (2d) 255 [ 100 Pac. (2d) 1055 ].) This case does not come under the first or second clauses above mentioned, but under the third clause, and is based upon the claim that an ambiguity exists in the reservation clause in the contract and deed.

1941Code; First Bond & Mortgage Go. v. Malouf, 37 Cal. App. (2d) 74 [ 98 Pac. (2d) 824 ]; Williams v. Silverstein, 213 Cal. 269 [ 2 Pac. (2d) 165 ]; Lynch v. Melby, 129 Cal. App. 646 [ 19 Pac. (2d) 49 ] ; Harding v. Robinson, 175 Cal. 534 [ 166 Pac. 808 ]; Estate of Gaines, 15 Cal. (2d) 255 [ 100 Pac. (2d) 1055 ].) This case does not come under the first or second clauses above mentioned, but under the third clause, and is based upon the claim that an ambiguity exists in the reservation clause in the contract and deed.

1941(Brown v. Luddy, supra.) The majority opinion states that "The Act, however, cannot be the source of title to any mineral lands.

1941Code; First Bond & Mortgage Go. v. Malouf, 37 Cal. App. (2d) 74 [ 98 Pac. (2d) 824 ]; Williams v. Silverstein, 213 Cal. 269 [ 2 Pac. (2d) 165 ]; Lynch v. Melby, 129 Cal. App. 646 [ 19 Pac. (2d) 49 ] ; Harding v. Robinson, 175 Cal. 534 [ 166 Pac. 808 ]; Estate of Gaines, 15 Cal. (2d) 255 [ 100 Pac. (2d) 1055 ].) This case does not come under the first or second clauses above mentioned, but under the third clause, and is based upon the claim that an ambiguity exists in the reservation clause in the contract and deed.

1941Code; First Bond & Mortgage Go. v. Malouf, 37 Cal. App. (2d) 74 [ 98 Pac. (2d) 824 ]; Williams v. Silverstein, 213 Cal. 269 [ 2 Pac. (2d) 165 ]; Lynch v. Melby, 129 Cal. App. 646 [ 19 Pac. (2d) 49 ] ; Harding v. Robinson, 175 Cal. 534 [ 166 Pac. 808 ]; Estate of Gaines, 15 Cal. (2d) 255 [ 100 Pac. (2d) 1055 ].) This case does not come under the first or second clauses above mentioned, but under the third clause, and is based upon the claim that an ambiguity exists in the reservation clause in the contract and deed.