Franscioni v. Soledad Land & Water Co.

This appeal is from the judgment. It was taken within sixty days after entry thereof.

The complaint is in two counts. The first count, in brief, alleges that the plaintiff is the owner of forty acres of land, being lots 5 and 6 of block 3 of a subdivision of lot 3 of the Rancho Ex-Mission Soledad made by one McCray in 1895; that the defendant owns and operates a pumping-plant established' to obtain water to irrigate said subdivision, including the land of plaintiff; that the right to have water from said pumping-plant of defendant delivered by the defendant to said lots, on his demand, for the irrigation thereof, upon payment by him of the established rates thereof, is an appurtenance to plaintiff’s lots; that he has demanded the delivery of such water by the defendant and offered payment of the rates; that the defendant refuses to deliver the water, except at

The second count, as we understand it, although it is not clear, is based upon the theory that the plaintiff, by reason of his ownership of said lots, is a beneficiary of a public use in the water in control of the defendant; that the defendant is in charge of such public use and is bound to deliver water to the plaintiff for the irrigation of said lots, on his demand and payment of the established rates, and that the defendant refuses to do so and denies that the plaintiff is a beneficiary of such public use, or that such public use exists, and denies that it is administering a public use, but asserts that it is conducting a private water system and serving private rights only.

It is argued that the first count does not show that the right to receive the water claimed by the plaintiff from the defendant is a right appurtenant to said lots. We think it is sufficient in this respect. The defendant’s predecessor in the ownership of the water plant, one Gould, was the owner of 1,675 acres of land, being the said lot three of Rancho Ex-Mission Soledad. He had purchased it under an agreement by which he was to develop the water, erect the pumping-plant, subdivide the land into suitable farm lots, build ditches from the plant to the several lots for the purpose of carrying the water to each lot for its irrigation and thereupon sell the lots to purchasers. The development of the water supply and the erection of the plant appears to have been an element of the consideration upon which he bought the. land, and the supplying of the water to the lots for irrigation by him was evidently a part of the plan devised to enable him to make sales. In pursuance of this agreement he caused the land to be subdivided into lots, erected the pumping-plant, made

“Whenever any corporation, organized under the laws of this state, furnishes water to irrigate lands which said corporation has sold, the right to the flow and use of the water is and shall remain a perpetual easement to the land so sold, at such rates and terms as may be established by said corporation in pursuance of law. And whenever any person who is

cultivating land on the line and within the flow of any ditch owned by such corporation, has been furnished water by it with which to irrigate his land, such person shall be entitled to the continued use of said water, upon the same terms as those who have purchased their land of the corporation.”

Gould conveyed to the defendant the legal title to the plaintiff’s lots before he executed his deed therefor to Kelly and the defendant perfected Kelly’s title shortly afterward by a conveyance thereof to him. Under either of the alternatives provided for by the aforesaid section, therefore, the plaintiff is entitled to the water from the defendant, upon payment of the agreed rates, or a reasonable rate, if none was agreed on. The several water-rights thus vested in the respective lot owners within the irrigated tract wrould be separate and private rights pertaining to each lot, respectively. The first count contains no allegation that the defendant, or Gould, had dedicated the water supply to public use, and it does not state facts from Avhich such public use is necessarily implied. It is therefore to be construed as a cause of action to enforce a private right. Such methods for the private sale and distribution of water have often been recognized as valid by our decisions. (Hildreth v. Montecito etc. Co., 139 Cal. 29 , [ 72 Pac. 395 ] ; Arroyo Ditch etc. Co. v. Bequette, 149 Cal. 546 , [9 Ann. Cas. 1141, 87 Pac. 10 ] ; Walnut Irr. Dist. v. Burke, 158 Cal. 170 , [ 110 Pac. 518 ] ; Garrison v. North Pasadena etc. Co., 163 Cal. 239 , [ 124 Pac. 1009 ] ; Thayer v. California Dev. Co., 164 Cal. 129 , [ 128 Pac. 21 ].)

We are satisfied that section 552 is constitutional. There is nothing in the claim that it is class legislation because it applies only to domestic corporations. That difference alone might even justify the classification, but we need not so decide, for the constitution itself requires foreign corporations doing business here to comply with our laws. (Const., art. XII, sec. 15.)

The appellant contends that the second count does not shoAV that the water, is devoted to public use, or that the defendant is in charge of such public use. These propositions are not explicitly stated therein, but the facts alleged, if true, show with sufficient certainty that the water is so dedicated and used. The findings declare that all the allegations of this

The court, in the judgment, declared that the defendant was a public service water company in charge of the administration of a public use of water of which plaintiff is a beneficiary, and that the plaintiff is entitled to water therefrom for the irrigation of his lots, upon payment of the rates established by law. The defendant claims that neither the findings nor the evidence support the proposition that the water is devoted to public use, or the proposition that the plaintiff is distributing such water in the character of a purveyor of a public use.

If the system as first established by Gould had continued unchanged, there would have been no public use and the defendant, in selling and distributing the water, would not be a public service corporation, but would be merely engaged in selling water in fulfillment of private contracts with particular persons for the supply of water to specific parcels of land. There would be no general use, no dedication to public use, and no right to the use in any person except the persons owning the lots to which the right to the water had been annexed by the respective agreements. (Thayer v. California Dev. Co., 164 Cal. 129 , [ 128 Pac. 21 ].)

But we perceive no substantial reason why a corporation owning a water supply and engaged in distributing it to persons to whose land it has agreed to deliver it for irrigation, upon a use which is private and not public or general, may not, with the consent of the owners of the rights' to receive such water, change the use from a private and particular use to a public use, so as to make the service and terms of delivery subject to regulation and control by public authority. We think this may lawfully be done and that, when it is done, all the parties concerned and consenting thereto, including the corporation engaged in the distribution, will thereafter be bound to conform to such rates, rules, and regulations for the service as may be established by the public body thereunto duly authorized.

The evidence shows that this change was made. In June, 1899, Gould and others formed the defendant corporation and Gould at once transferred to it all his remaining interest in said one thousand six hundred seventy-five-acre tract for the irrigation of which the pumping-plant was erected

There is evidence that in December, 1905, the defendant made and entered on its minutes a resolution purporting to fix rates and rules for the sale and delivery of its water different from those fixed by the board of supervisors, that thereafter it did not conform to the rates and rules of the board, and that in 1909 it again attempted to declare its own rates; also that in 1910 it changed its articles of incorporation so as to make them declare that it was organized for the purpose of supplying water “as a private corporation and not as a public water company, for private use and not for public use,” and that its stockholders should have a preferred right to the water. The original articles declared that the company was formed to supply water and sell the same for irrigation. This would empower it to do this business for either a private use or a public use, at its option. It is claimed that by reason of its conduct it has changed its character, as well as the use, and is not bound to continue the service as for a public use. It is obvious that if the water had become dedicated to public use in 1905, it was not within the power of defendant, as purveyor or owner thereof, to revoke the dedication and convert it into a private use. This cannot be done in any case without the consent, express or implied, of all the beneficiaries of the use. Such consent was not shown. The point is settled by the decisions of this court in Leavitt v. Lassen, Irr. Co., 157 Cal. 89 , [ 29 L. R A. (N. S.) 213 , 106 Pac. 404 ], and Fellows v. Los Angeles, 151 Cal. 64 , [ 90 Pac. 137 .]

The cause was tried upon an amended complaint. The original complaint stated the facts substantially as set forth in the amended complaint, but the prayer thereof was for a writ of mandate. It was, in effect, a proceeding in mandamus, under sections 1084 and 1097 of the Code of Civil Procedure, to compel the defendant to deliver water to plaintiff’s land on payment of the established rates. An alternative writ of mandate was issued and served on the defendant. A demurrer to the complaint was thereafter sustained and thereupon, on leave of court, the amended complaint was filed changing the prayer so as to present an action to have it adjudged that plaintiff is entitled to receive water from the defendant from its plant, that defendant is in charge of a public use in the water for plaintiff’s benefit and for damages for the injury from its previous refusal to supply said water. The defendant objected to this change of the character of the case and moved to strike the amended complaint from the files on the ground that it was a departure and stated an entirely new cause of action. We are of the opinion that, under our system of procedure, it is irregular to change a proceeding in mandamus to an action for equitable relief or for the recovery of damages, by an amendment of the complaint. In this case, however, the facts necessary to support the prayer of the amended complaint were alleged in the original complaint. The case has been tried on the theory that it was an action for equitable relief and for damages and not a special proceeding in mandamus. It does not appear, and it is not asserted, that the defendant was in any

The objection that the evidence does not support the judgment for damages is not well taken. We cannot enter into the question of the credibility of the witnesses. The values given by them to the crops of alfalfa which the evidence shows the land would have produced if defendant had supplied water when demanded, after deducting the cost of production, are sufficient to show the damages allowed.

The judgment is affirmed.

Sloss, J., Henshaw, 'J., Lorigan, J., and Angellotti, C. J., concurred.

Rehearing denied.