Fellows v. City of Los Angeles

This is an action to enjoin the defendants from cutting off the water flowing in a certain pipe to "the plaintiff’s premises, and to compel the defendants to furnish water to certain other premises belonging to the plaintiff. The court below sustained a general demurrer to the ■complaint, and thereupon gave judgment in favor of the ■defendants, from which plaintiff appeals.

The facts upon which plaintiff relies are as follows: The ■city of Los Angeles was the owner of a tract of land inside the city limits near the east boundary thereof, and nearly two acres in extent, on which were flowing springs and which was permeated with water. In 1858 it sold and conveyed this land to one Elijah Moulton without reservation of any water-rights. In 1887 Henry T. Hazard was the owner of about two hundred acres of land outside of the city boundary, but ■adjacent thereto, which he had subdivided into blocks, lots, .and streets, known as “Hazard’s East Side Addition to the City of Los Angeles.” Hazard agreed with certain other •persons that he and they would incorporate a water company to buy the Moulton land and the waters thereof, construct a pumping plant thereon and a reservoir near by, and that they would pump and store said waters and lay pipes for and operate a water system for the distribution and sale of said water for public uses; that Hazard should superintend

In the year 1887 the corporation was formed under the-name of “The East Side Spring Water Company,’’ and it proceeded to purchase the Moulton land, construct the proposed water system, and lay the pipes to and through the-said addition in certain streets thereof, and Hazard advanced from twelve thousand dollars to fifteen thousand dollars to< the corporation for that purpose and superintended the work of constructing and operating the water system, all in pursuance of the agreement aforesaid. It is not alleged that the fifteen thousand dollars constituted one third of the cost of the Moulton land. In 1888 the plaintiff purchased of' Hazard lot 19 of block 20 of said East Side Addition, built a residence thereon, in which he has ever since resided, and for which he requires water for domestic use. He has no-other means of supply, except by and through said water-pipes. At the time he purchased the lot, the East Side Spring Water Company, at his request, connected the lot with its pipe-line, and thereafter furnished plaintiff with said water from said system.

In 1892 a company known as the “Los Angeles City Water-Company” became the owner of the entire capital stock of the East Side Spring Water Company, and was consequently in control of its action, but it did not technically acquire title-to any of its property except as the owner of said capital stock. On February 3, 1902, the East Side Spring Water-Company sold and conveyed to the city of Los Angeles all' its property, including the pumping plant, reservoir, and pipeline aforesaid, and the city has, ever since that time, had the possession and management thereof. The East Side Spring Water Company thereupon dissolved and ceased to-exist as a corporation. After the Los Angeles City Water Company obtained the capital stock of the other company,.

In 1900 the plaintiff purchased from Hazard lot 18 of block 20 in said Bast Side Addition, upon which he now desires to build a house, and which he desires to have connected with said water-pipes, in order to get water therefrom for the building operations.

Shortly before the complaint was filed, the plaintiff tendered to the city the legal charges for a water connection, offered to pay the established monthly rate in advance, and demanded that his said lot 18 of block 20 be connected with said pipe and be furnished with water by means thereof. The city refused to comply with said demand and refused to allow the plaintiff to make the connection himself. It also gave notice that it would cut off the supply of water for his residence on lot 19. It is alleged that it intends to and will, unless enjoined, cut off said supply, and that it claims that, because of the fact that saic ots lie outside of the city, it is under no obligation to furnish water to them. It is alleged also that there is sufficient water available from the Moulton land to supply all the consumers of water along the pipelines of the Bast Side Spring Water Company’s system. It is to be observed that the Moulton land, and the reservoir in which the water therefrom was stored, were within the city limits, but that the Bast Side Addition, including plaintiff’s residence, was adjacent to, but outside, the city.

Under the provisions of the constitution (art. XIV, sec. 1), and of sections 1, 8, and 10 of the act of March 12, 1885,

The respondents claim that by reason of the language of section 10 of the act, this provision does not apply to the present case. The section declares that “every person, company, association and corporation, having in any county in the state (other than in any city, city and county, or town therein) appropriated waters for sale, rental, or distribution, to the inhabitants of such county,” shall be obliged, upon tender and demand, to distribute the water as above stated. It is argued that this language imposes the duty only where the appropriation of the water is made elsewhere than in £b city, city and county, or town, and that, as the Moulton land, from which this water was derived, was situated in the city, the water was appropriated within the city, and, hence, that the case falls within the exception. The statute ■quoted, when properly considered, is not to be thus interpreted. At the time it was enacted, the constitution had provided for the fixing of water rates in cities and towns, but there was no law providing for such control or regulation in the case of water supplied for public use in places outside of cities and towns. The act of 1885 was intended to supply this omission. In the first clause of the title it is designated as “An act to regulate and control the sale, rental

The facts alleged show that the plaintiff belongs to the class of persons to whose use the water from the Moulton land was appropriated. The predecessor of the defendant had agreed

It is unnecessary to determine whether or not a mandatory injunction could be issued, under the equity powers of the court, to compel the continuous operation of a pumping plant, or the establishing of a connection to the lot No. 18, which had not been previously connected. The superior court has full jurisdiction to give any relief warranted by the facts alleged and within the scope of the prayer of the complaint, whether that relief be equitable, or legal, or relief appropriate only in a special proceeding. It has such jurisdiction in this case, even if the relief asked is, in a certain sense, multifarious —as, for instance, in part by injunction and consequently equitable, and in part by mandate, and therefore authorized under a special proceeding in mandamus. The demurrer is upon the sole ground that the complaint does not state facts sufficient to constitute a cause of action. The facts are sufficient to justify relief by injunction as to one lot, with additional relief by w;rit of mandate as to the other, and the proper parties defendant are before the court for both kinds of relief. The objection that there is a misjoinder of causes, even if well taken, which we do not decide, is not made by the demurrer, and it is, therefore, for the purposes of the demurrer waived. (Code Civ. Proc., sec. 434.) Therefore, if a mandamus or injunction, or both, would give complete relief, it is within the power of the court to give it in this action.

We perceive no ground upon which the right to the injunction as to one lot, and to the mandamus as to the other, can be denied, unless it be by reason of the fact that the source of the water supply is in the city of Los Angeles and the premises to be supplied lie without its limits, or by reason of the fact that the city of Los Angeles is now in charge

So far as the East Side Spring Water Company and the Los Angeles City Water Company were concerned, there can be no reasonable doubt that the respective locations of the source of supply and the place of use, as stated, would be wholly immaterial. They were both, so far as appears, corporations organized under the laws of this state for the purpose of distributing water for public use. There is nothing to indicate that their powers or duties were limited to the administration of such public use within the city of Los Angeles. They each in turn undertook to supply, and did supply, the particular public use of which the plaintiff, as the owner of the described lots, was the beneficiary. If either of them had continued in charge of the use and continued the operation of the plant, and had cut off or refused to supply water to the plaintiff’s lots, an appropriate action would lie in favor of the plaintiff for the proper relief. The fact that the water was obtained within the city, or even that it was taken from the Los Angeles River, which by the special dedication created by the Spanish law for the founding of pueblos was set apart for the exclusive use of the city of Los Angeles, would be no defense in their behalf to such an action, so long as they were able to obtain the water from that source for that use. If the city had' prevented them from taking the water for such use, or if, without their fault, from any cause, their supply for such use had been cut off, or had failed, it would perhaps have been a defense; but not so with the mere fact of the different relative situations of the source of supply and the place of use.

The defendants claim exemption from the obligations and liabilities of their predecessors in interest, on the ground that all the waters existing within the city of Los Angeles are dedicated to the exclusive use of the inhabitants of the city; that these waters are held by the city subject to the public trust of continuously distributing the same to such inhabitants in just proportion, and that the corresponding duty rests upon the city; that the city is not authorized to make concessions of the perpetual or exclusive use of any part of such waters to individuals, nor to communities outside the limits of the city;

It does not appear that the water of the Moulton land composed a part of, or was tributary to, the Los Angeles River, The respondents do not claim that it is, and, for the purposes of this case, we assume that it is not, and that if it is impressed with a trust for the exclusive use of the inhabitants of the city at all, it is because it comes within the description of “fuentes—springs of water appropriated to ,the supply of a town”—which, as is stated in Vernon I. Co. v. Los Angeles, 106 Cal. 237 , [ 39 Pac. 762 ], were by the Spanish law considered as communal property. But this class of pueblo property, unlike the rivers, was subject to sale to private persons by the pueblo. The case just cited contains a full discussion of the Spanish and Mexican law upon the subject of pueblo property and rights. In the course of his opinion in that case, Justice Temple says with regard to this class of property, —that is, public land used in common by the inhabitants for its waters, its wood, and its pastures: “I do not understand that these properties were commons in the common-law sense. They were communal property, subject to be administered by the pueblo authorities. The public could be dispossessed, and the

The charter of Los Angeles gives it power to acquire water and water-rights, within or without the city, for the use of its inhabitants. (Stats. 1889, pp. 455, 457, 458, secs. 2, subds. 7, 15.) In the exercise of this power, it would have the right to buy from any corporation or person engaged in supplying water for public use outside the city any surplus water which such corporation or person might possess. If it were necessary in order to obtain such surplus, the city might, under this power, purchase the entire water supply of such person

The question thus presented is whether or not, under the circumstances of this case as presented in the complaint, the city, after thus acquiring this water system, can now discontinue its operation, cease to furnish the water, or any water, to the persons theretofore receiving and entitled to receive it from said system, retain title, possession, control, and management of all the property composing the system, and allow the water previously devoted to the public use to run to waste. It is clear that this cannot be allowed. If there are facts or circumstances which absolve it from the duty to continue the water service, they must be shown in defense.

The water, as we have seen, was appropriated to a public use, of which plaintiff was and is a beneficiary. The city cannot thus continue to hold and control property so appropriated to public use and at the same time refuse to perform the public duty which such possession and control imposes.

We do not mean to say that a corporation engaged in the distribution of water to public uses may not abandon its property and quit the business, without being subject to mandatory proceedings to compel it to continue to carry it on. It may find it impossible to go on. Its supply may become exhausted or be insufficient for paramount needs; the rates fixed by law may be too small to enable it to operate at a profit or without substantial loss; or it may conclude, without reason which the law would consider sufficient, that it will not continue. In case of a natural person it might become physically impossible. We do not intend to declare that in any such case mandatory process would be issued to compel the personal performance of the duty. These questions are not now involved and we express no opinion concerning them. But in such a case, it cannot continue in absolute control of the water and waterworks appropriated to the public service. If a

The judgment is reversed.

Sloss, J., and Angellotti, J., concurred.