San Joaquin & Kings River Canal & Irrigation Co. v. Stevinson

This is an action to condemn property for public use. The plaintiff has been diverting water from the San Joaquin River and carrying it to lands in the San Joaquin Valley to be used for irrigation. It desires to divert an additional flow of five hundred cubic feet per second from the river into its canals for the same public use. This suit is begun to condemn the interest of the defendants in this additional quantity of water. At the close of the plaintiff’s case the defendant moved for a nonsuit and the same was granted by the court. Judgment was rendered thereon and from this judgment plaintiff appeals.

I. The first ground of the motion for nonsuit was that the use to which the water proposed to be condemned and taken is to be devoted is not one of the public uses in behalf of which, under section 1238 of the Code of Civil Procedure, the right of eminent domain may be exercised.

The complaint alleges and the proof shows that the plaintiff owns two large canals leading out of the San Joaquin River into the country lying west of the river and extending from the county of Fresno through the county of Merced into the county of Stanislaus. One of these canals is seventy-two miles long and the other fifty-two miles long. It also has distributing canals leading therefrom to the lands in the vicinity, for convenience of distribution, and it maintains a dam in the river to divert the water therefrom into the canals. By this means it has been diverting water from the river and carrying the same into canals and selling it for irrigation, watering of stock and domestic uses “to the inhabitants of the counties of Fresno, Merced and Stanislaus, ” as it alleges. It also appears that it desires to divert from said river into said canals an additional flow of five hundred cubic feet per second and to carry the same in said canals and devote it to the same public use in the same manner, and that along its canals there is sufficient land upon which irrigation is necessary, the owners of which desire to use said water, to consume said additional quantity. The point where the canals begin and their present terminus are described with substantial accuracy. The canals are themselves permanent landmarks and, consequently, the termini being described, the.situation and location of the canals, the place of use of the water to be eon

We think this sufficiently shows that the plaintiff desires to take the water-rights sought to be condemned in behalf of the public use indicated by subdivision 4 of section 1238 of the Code of Civil Procedure by the words “supplying mines and farming in neighborhoods with water.” While there is a general allegation in the complaint that the water is to be “sold to the inhabitants” of the three counties named, the specific facts alleged as to the method by which the water has been diverted, carried, and distributed and by which it is proposed to take, carry, and distribute the additional water, the place of use designated in the complaint and shown by the evidence and the purposes to which it is to be applied, show with reasonable certainty that the water is, in point of fact, to be supplied to farming neighborhoods, or “to farming in neighborhoods,” as the last amendment to the section expresses the idea. The fact that there may be several separate farming neighborhoods along the very extensive canals of the plaintiff does not destroy its right. That a person engaged in supplying several such neighborhoods should have the right of eminent domain to obtain property therefor was evidently the object contemplated by the last amendment inserting the word “in” in the phrase “farming in neighborhoods.” . It may be that without this word the right to condemn for more than one neighborhood would have existed, but the insertion of this word implies that the main idea was the supplying of farming operations with water and that more than one neighborhood might receive water from the same system of works.

The law does not require, in order to maintain an action to condemn water for public use, that the boundaries of the territory to which it is to be dedicated shall be alleged and proven with absolute certainty. The nature of the use is such that this could not be done. A railroad, a highway, or a public building, has a fixed location to which all who desire to use them must come. It is not so with water devoted to public use. In that case the public service consists in conducting the water to the consumers, or to some convenient place,, where they can obtain it. Main canals are built from the source of supply to and through the territory to be supplied and both the landowners whose lands abut thereon and those who can

It is perhaps unnecessary to add that a right to divert water to be allowed unnecessarily to run to waste, cannot be acquired, even by a judgment of condemnation. Such judgment, when given, would afford no protection for such a taking.

We think also that the use described in the complaint is one for which the right of eminent domain is given in subdivision 3 of said section, as “canals, aqueducts, reservoirs, tunnels, flumes, ditches, or pipes for conducting or storing water for the use of the inhabitants of any county, . . . and all other public uses for the benefit of any county, ... or the inhabitants thereof, which may be authorized by the legislature.”

This language necessarily implies, not only that property may be condemned for the canals and conduits mentioned, but that water may also be taken to be carried in the canals and ditches. This precise question was decided in Northern etc Co. v. Stacher, 13 Cal. App. 409 , [ 109 Pac. 896 ], by the third district court of appeal. The question is elaborately and ably discussed and the decision received the approval of this court, as is evidenced by the fact that it denied an application for a rehearing thereof. It follows from this decision that water may be condemned and taken for public use by any person

The defendants claim that this subdivision does not confer the right of eminent domain for the use mentioned unless the person in charge of the use proposes to supply all of the inhabitants of the county, and that if the taking is for the use of a particular district or territory of the county only, it is not authorized under this subdivision. There can be no doubt that the furnishing of water generally to the inhabitants of a particular section of the county is a public use. It is not even necessary, in order to constitute a public use, that the water should be obtainable by all the inhabitants of the immediate territory to which it is taken. It may be a public use, although all persons within that territory cannot enjoy it. It is sufficient if all who are capable of enjoying it have an equal right to it. For example, it has been held that water devoted to the use of all the landowners within a specified territory, on equal terms to all, and open to all, for the irrigation of their lands, is devoted to a public use. (Fallbrook Irr. Dist. v. Bradley, 164 U. S. 161 , [ 41 L. Ed. 369 , 17 Sup. Ct. Rep. 56 ] ; Merrill v. Southside I. Co., 112 Cal. 426 , [ 44 Pac. 720 ].)

Where a statute “is fairly susceptible of two constructions one leading inevitably to mischief or absurdity, and the other consisting of sound sense and wise policy, the former should be rejected and the latter adopted.” (In re Mitchell, 120 Cal. 386 , [ 52 Pac. 800 ].) “A construction should not be given to a statute, if it can be avoided, which will lead to absurd results, or to a conclusion plainly not contemplated by the legislature.” (Merced Bank v. Casaccia, 103 Cal. 645 , [ 37 Pac. 649 ].) The section is also subject to the rule that its provisions are to be liberally construed, with a view to effecting its objects and to promote justice. (Code Civ. Proc., sec. 4.)

It is a fact, of which the court may well take judicial notice, that there is no county in the state in which it is practicable to serve all of its inhabitants with water by means of one system of works. The topography will not permit it. The city and county of San Francisco, if it should be classed as a county, is perhaps an exception. But it is classed separately in the subdivision referred to. If this part of the statute is to be given the effect here claimed the result is that it will

It is further suggested in this connection that the nonsuit was properly granted because there is a fatal variance between the allegations as to the extent of the use proposed and the proof thereof, in this: That the allegation is that the water is to be devoted to sale and distribution to the inhabitants of Fresno, Merced, and Stanislaus counties, whereas the proof shows that it can be sold and distributed only to inhabitants along the lines of its canals and wholly in the territory west of the river. While there is a general allegation to this effect, as before stated, the specific facts alleged show clearly

2. The plaintiff is a Nevada corporation. The defendants contend that its articles of incorporation do not designate the application of water to public use as one of its corporate powers, and further, that a foreign corporation cannot, under the laws of this state, exercise the power of eminent domain. For these -reasons they contend that the nonsuit was properly granted.

The articles state that the plaintiff corporation is formed and empowered to construct canals in California leading from the San Joaquin River, for the carriage of passengers and freight, and for the purpose of irrigation, and to supply water to the inhabitants of cities and towns in California. These powers are sufficient to authorize it to carry water in its canals to be devoted to public use for the purposes of irrigation, navigation, and commerce.

The words ‘ ‘ any person, ’ ’ in section 1001 of the Civil Code, includes any public or private corporation, as well as any natural person, and by the terms of the section, any such person may, “without further legislative action” acquire property by condemnation for any public use specified in section 1238 of the Code of Civil Procedure, and in doing so becomes “an agent of the state” and a “person in charge of the use” for that purpose (Pasadena v. Stimson, 91 Cal. 248 , [ 27 Pac. 604 ]). The state may authorize foreign corporations to exercise this right. (Gilmer v. Lime Point, 18 Cal. 255 .) Foreign corporations have always been allowed to enter this state and do any business therein that is within their corporate powers. Their right to do so has been recognized and sanctioned by our statutes ever since April 4, 1870 (Stats. 1869-70, p. 881). For all purposes of every business within their capacity they are classed with domestic corporations, provided they comply with the statutes allowing them to do business here, and a statute which by necessary construction confers powers upon corporations in general, is to be understood to confer that power upon foreign corporations doing business here as well as domestic corporations. The aforesaid section would, therefore, appear to give them the right of eminent domain on the same terms as other persons and corporations. There would be no doubt of this proposition were it not for section 407

The section is a mere revision and codification of section 1 of the act of 1880 (Stats. 1880, p. 21). The codification was made in 1905 (Stats. 1905, p. 631). Some verbal changes are made, but it is essentially the same, and the particular provision in question is not altered at all. Section 1001 of the Civil Code and section 1238 of the Code of Civil Procedure were enacted in 1872. Their effect, as we have seen, was to confer this right upon all corporations, foreign or domestic, public or private, for the particular uses designated in section 1238. The act of 1880 did not purport to take away any right of this character. It was an entirely independent enact

Furthermore, the incorporation of the statute in the code cannot be said to have a greater effect upon its meaning than an amendment thereof would have had. Where a statute is amended, the parts which are not altered are to be considered as having been the law from the time when they were enacted (Pol. Code, sec. 325). Hence, the meaning and effect of the statute of 1880 would not be changed by putting it in the code, and if it did not repeal or modify the pre-existing law before its codification, it would not have that effect afterward.

3. The objection that the proof showed that the water was not necessary to public use, except for a portion of the year, if it ever was of any force, was removed by the filing of an amended complaint wherein the taking of the water is limited to the season when it is actually required, the dates being specifically stated.

4. There is no merit in the proposition that the plaintiff cannot condemn the full quantity asked for because a part of it would be lost in transmission to the place of use by seepage and evaporation. Some loss in this way is inevitable and it must be considered a part of that which is necessary to be taken to supply the actual use proposed. There was evidence to the effect that there would be no loss of this character which could be prevented by reasonable care or precaution.

6. We think the lower court erred in permitting J. R Adams, W.

We have considered all the grounds stated in the motion for a nonsuit. As none of them is sustained, it follows that the court erred in giving judgment for the defendants.

The judgment is reversed.

Henshaw, J., Melvin, J., Lorigan, J., and Angellotti, J., concurred.

I dissent. In my opinion the non-suit was properly granted on the first ground stated in the motion, viz., that the purpose for which condemnation is sought is not one of the public uses in behalf of which, under section 1238 of the Code of Civil Procedure, the right of eminent domain may be exercised.

The majority of the court has reached the conclusion that the plaintiff’s claim may be sustained under either subdivision 3 or subdivision 4 of section 1238. With respect to subdivision 4 (“the supplying of mines and farming [in] neighborborhoods with water”) it may be said that the plaintiff itself makes no contention that its complaint stated or that its proof established a right under this subdivision. The complaint plainly shows that it was framed with the intent of making a case under subdivision 3, and the briefs of the appellant virtually concede that a claim of right to condemn under subdivision 4 was not presented and is not involved. Under these circumstances, this point may be passed with the statement that I believe the concession to have been no more than was required by the state of the record.

The question, then, is- whether the proof supported the allegations of the complaint that plaintiff intends to devote the water in question to the purposes of sale, rental, and distribution to the inhabitants of the counties of Fresno, Merced, and Stanislaus. It appears that plaintiff has been furnishing water and intends to continue to furnish it to a large part of the territory and a considerable number of the inhabitants on

The language of the statutory provision under consideration is this: “Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the. following public uses: . . . 3. . . . ponds, lakes, canals, aqueducts, reservoirs, tunnels, flumes, ditches, or pipes for conducting or storing water for the use of the inhabitants of any county, incorporated city, or city and county, village or town . . .” The contention of the appellant, sustained by the majority opinion, is, in effect, that a public service corporation engaged in the sale, rental, and distribution of water within one or more counties, which is ready to furnish, and has canals and works sufficient to furnish such water to so great a number of .the inhabitants of such county or counties as to make the character of the use public rather than private, is engaged in the sale, rental, and distribution of water “for the use of the inhabitants of any county. ’ ’ In other words, the statute, thus construed, authorizes the condemnation of property in behalf of ponds, lakes, canals, etc., for constructing or storing water for the use of any number of people residing upon any number of parcels of land anywhere within the state, provided only that the use be of a public character. For, since the entire area of the state is divided into counties, it is apparent that canals or other conduits devoted to supplying water to any of the inhabitants of the state are used for the

Section 1238 does not provide that the right of eminent domain may be exercised in behalf of every public use. What it does is to enumerate certain public uses, and to declare that the power of eminent domain may be exercised in behalf of the particular uses enumerated. That the corporation plaintiff is in the control of a public service is not conclusive upon' the question of its right to exercise the power of eminent domain. It must appear in addition that the statute has authorized the exercise of this power for the particular purpose for which it is sought to be exercised.

It must be assumed that the legislature had some purpose in limiting the right of eminent domain to the public use of conducting or storing water “for the use of the inhabitants of any county, incorporated city, or city and county, village or town.” The idea in the minds of the lawmakers evidently was that the right of eminent domain in aid of the furnishing of water was not to«be granted in every ease of a public use, but only where the water was for the use of the inhabitants of the governmental subdivisions enumerated. It is of the essence of a public service that the service shall be compellable (to the extent of its capacity and subject to reasonable restrictions) by all the members of the community to whose use the subject of the service is appropriated. (Wyman on Public Service Corporation, sections 273, 344 ; Lux v. Haggin, 69 Cal. 269 , 306, [ 4 Pac. 919 , 10 Pac. 674 ].) When, then, the statute speaks of furnishing water to the inhabitants of a county, city, city and county, village or town, it contemplates a service available to the inhabitants, -generally, of the respective governmental territories, not a service to such part of the territory as may be selected by a water company. The inducing cause for granting the right was the benefit of the

On all other matters discussed in the main opinion I agree with the views therein expressed.

Rehearing denied.

In denying a rehearing, the court in Bank rendered the following opinion on December 20, 1912: .

In a petition for rehearing, the respondents claim that the part of the opinion of the court herein relating to the admission of the East Side Canal and Irrigation Company and others as defendants, being the part numbered 6, is contrary to the provisions of sections 1244, 1246, and 1247 of the Code of Civil Procedure. We deem it advisable to restate the position of the court more at length.

Section 1244 requires the complaint in a condemnation suit to state “the names of all owners and claimants of the property, ’ ’ as defendants. Section 1246 provides in substance that ■ any person occupying, or having or claiming any interest in the property sought to be condemned, may appear, plead.and defend as to his interest. Section 1247 provides that in such

It is obvious from this language that these provisions do not contemplate or authorize the admission of a person as a party who does not show that he has some interest in or right to the property sought to be condemned, or of a person whose statement of his right shows that he has no such interest.

All that these parties had, or claimed to have, was the right to divert from the stream of the San Joaquin River, at a point about thirty miles below plaintiff’s dam and twenty miles above the Stevinson land, a flow of water equal to five hundred cubic feet per second. They claim that this right was paramount and superior to the riparian rights of the Stevinson land in the river passing that land. If this is true, then it follows, necessarily, that the right or interest of those parties constituted no part of the riparian rights of the Stevinson land in the river. Their diversion took it out of the river above, it was consumed by use in irrigation, it never again reached the river and it formed no part of the river passing the Stevinson land, to which the riparian rights attached.

The riparian right is parcel of the land to which it attaches. It is local in its nature. It enables the owner to enjoin an injurious interference with the stream, but it does so only when such interference affects the river where it passes by his land. If he cannot show this, he -cannot complain of the interference. A use of the stream above, if it does not affect it where it passes his land, is no violation of his right. The intervening defendants having, as they say, a paramount right to take out the water above, such water ceases- to be a part of the river which rightfully reaches the Stevinson land and its riparian rights do not extend to or include it. To say that the riparian right of the Stevinson land does include it, would be .to admit that the right claimed is not paramount to the riparian right. The right of these defendants is, therefore, a right of property entirely separate, distinct from and unconnected with the riparian rights of the Stevinson Company in the river, which latter constitutes the property sought to be condemned.

The argument of these parties is based upon the idea that the plaintiff is seeking to condemn absolutely all rights to a

The petition for rehearing is denied-

Angellotti, J., Lorigan, J., Henshaw, J., and Melvin, J., concurred.