Sutro Heights Land Co. v. Merced Irrigation District

The complaint in this action asks for an injunction against the defendant prohibiting it from permitting water to flow or seep through its canals upon plaintiffs’ lands; for the abatement thereof as a nuisance, and for damages alleged to have been already sustained by reason of seepage of water upon plaintiffs’ said lands. By a separate cause of action plaintiffs also ask that defendant be compelled to install a drainage system for the purpose of relieving plaintiffs’ lands from the water which the plaintiffs allege has been caused to flow thereon through seepage from the canals of the defendant.

Plaintiffs allege in their complaint that they are the owners in severalty of three tracts of land, being parts of a tract of land formerly owned by Louis Titus and commonly known as the Titus ranch, all of which last-named tract, except the southwest quarter of section 18, township 7 south, range 11 east, M. D. B. & M., lies within and is a part of the Merced Irrigation District. The lands of the plaintiffs are practically contiguous and are in the extreme southwest portion of the district and comprise 2,500 acres or thereabouts.

The defendant is an irrigation district organized under the general Irrigation Act of 1897 (Stats. 1897, p. 254) and acts amendatory thereof. It comprises about 180,000 acres of land and is situated in the county of Merced.

In their complaint the plaintiffs allege that the defendant, the Merced Irrigation District, during the year 1922' constructed certain canals over and upon the lands of plaintiffs and particularly a certain canal known as the McCoy canal, the McCoy spillway, the Arena canal or spillway, and certain branches thereof, for the purpose of the carriage of water for the irrigation of the land within the said district, and also for the purpose of spilling the surplus water in the canals of said district into certain natural' and artificial drainage beyond the boundaries of said district. The complaint then continues and it is alleged therein:

1 ‘ That the said land of the plaintiffs is extremely sandy in character and the canals so constructed and operated by the said district were and are likewise constructed through land of loose, sandy nature, and the said district constructed the said canals with banks made entirely of loose, sandy material, and so constructed the said canals that the banks were raised extremely high and the water in said canals was carried above the natural surface of the ground and against the loose, sandy banks of said canals, and ever since said time the said defendant has carelessly and negligently, and entirely disregarding the rights of the plaintiff's, maintained and operated the said canals so constructed in such a careless and negligent manner, and has carried water in the said canals and above the natural surface of the said ground and against the said sandy banks of said canals, and has carelessly and negligently permitted the said water to escape from the said canals and through the sandy banks thereof and to flow in large quantities outside of the said canals and through, over and upon the said lands of the plaintiffs, and to seep through the said banks in large quantities, and into and under the lands of the said plaintiffs; and the said defendant has carelessly and negligently failed to in any way control the said water or to confine the same within the said canals and has carelessly and negligently failed to properly line the said canals or to otherwise prevent the same from flowing and seeping out of the same, as aforesaid, and as a result thereof large quantities of water have so flowed and seeped out of the said canals and formed lakes and ponds upon the surface of the said lands of plaintiffs, and raised the water table in the said lands in other places on the same so near to the surface as to water-log the same and destroy the same for the growth of crops to which the same were otherwise adapted, and so as to kill and destroy the crops already growing thereon, and so as to make the said lands utterly unfit for agricultural purposes.

“That the said defendant still maintains and operates the said canals and threatens to continue to maintain and operate the same and threatens to continue to carry large quantities of water through the said canals, and to carry the same against the said sandy banks of the said • canals, and threatens to and will, unless enjoined by this court,

continue to permit the same to seep and flow out of the said canals and through the banks thereof and into, over and upon the said land of the plaintiffs and to still further flood and water-log the said land and raise the water table under the same; and the said trespasses of the said defendant are and will be continuous and will gradually entirely destroy the said property, and the whole thereof, and render the same entirely unfit for agricultural purposes, and will prevent the said plaintiffs from growing any crops whatsoever upon the same, and will also cause noxious growths upon the same, and will cause salts to accumulate upon the surface thereof, permanently injuring and destroying the same; and the said acts of the defendant interfere with the comfortable use and enjoyment of the said property and constitute a nuisance and a continuing trespass thereon.”

Then follow allegations as to the damage sustained by the respective plaintiffs.

To these allegations the defendant made certain denials and admissions. It also set up a number of affirmative defenses and pleaded the statute of limitations. Upon the issues thus made by the pleadings the case went to trial and at the conclusion of the evidence the trial court made and filed its findings of fact pursuant to the issues made by said complaint and the amended answer thereto including the affirmative defenses of the defendant. These findings are voluminous and are entirely too lengthy to be set forth in full herein. They are in favor of the defendant on every issue made by the pleadings, with one apparent exception, which we will later mention. The court found that for more than ten years prior to the year 1922' the Crocker-Huffman Land & Water Company had owned an extensive canal system in said county and as early as 1913 with the knowledge and acquiescence of the predecessors in interest of the plaintiffs they had constructed a certain canal known as the Arena spillway as a part of their canal system. In January, 1922, the defendant district purchased from the CrockerHuffman Land & Water Company its said canal system including said Arena spillway and has continued to and is now using said system as it was used prior to its purchase by defendant. That the predecessors in interest of plaintiffs owned in one tract the said lands through which said Arena spillway was constructed and the lands now owned by the

“That it is not true that the land described in said complaint is extremely sandy in character nor that it is any more sandy in character than many more large areas in defendant district and in other portions of the State of California, and particularly in the San Joaquin Valley in said state, which are and for many years have been irrigated by means of canals constructed of the same kind of material and located in the same manner as the canals constructed by defendant as aforesaid. That it is true that the said canals wrere constructed of the material of the soil through which said canals were built, and that such canals are commonly and usually built through such material in the San Joaquin Valley and that it would not have been practicable or feasible to have built or operated said canals otherwise than as the said canals were built and used as aforesaid. That it is not true that defendant so constructed said canals, or any of them, that the banks thereof were raised extremely high or any higher than was necessary to provide in a reasonable and customary and proper manner for the irrigation of the lands to be irrigated from said canals, including the said lands described in said complaint, or any higher than is usual and proper in construction of canals in and through lands of the character of the lands described in said complaint. That it is true that the lands described in said com

The court then finds that the defendant has never carelessly or negligently maintained or operated said canals and laterals located upon plaintiffs’ lands, nor has it carelessly or negligently permitted any water to escape from said canals or laterals nor to drain or seep through the banks of said canals or laterals upon the lands of the plaintiffs.

A further finding of the court was to the effect that said canals and laterals were designed and constructed in a workmanlike manner, with due care, skill and prudence and in accordance with plans properly drawn and such as are customarily and usually adopted for the construction- of canals through lands of the nature and topography of said Titus ranch for the irrigation thereof; and that the seepage from said canals has been only in such quantities as is usual and unavoidable from canals constructed as aforesaid in and through lands of the nature and topography of the Titus ranch.

As accounting at least in part for the high-water plane under the lands of the plaintiffs the court found that during the years from 1922 to 1926 large quantities of water delivered upon the Titus ranch for irrigation purposes had seeped and percolated through and from said lands so irrigated into the ground water in and under said Titus ranch, and that many of the persons to whom said water was delivered for irrigation purposes, carelessly and negligently caused and allowed large portions of the water so delivered to them in certain of said years to run into certain swales or depressions and accumulate therein, thus causing the ground water in and under sa|d Titus ranch to rise during the spring and summer of each of said years; furthermore, that plaintiffs’ lands are underlaid with a thick layer of impervious material known as hard-pan at a depth of from six inches to two feet below the bottoms of some of the

As a final finding on this phase of the case, the court found that defendant had not damaged the lands of the plaintiffs, or the lands of any of said plaintiffs in the particulars set forth in plaintiffs’ complaint, or in any of said particulars, or in any other manner, or in any amount, or at all.

In response to certain of the affirmative defenses interposed by the defendant, the court found that the plaintiffs and their predecessors in interest had executed and delivered

1. Agreement between John W. Mitchell and the Merced Canal Irrigation Company, dated May 21, 1885, whereby the said John W. Mitchell purported to grant to said company, its successors and assigns, the right of way for the purpose of constructing ditches, canals, flumes, pipes and conveyances for water through and across all of the lands described in said agreement, which said lands include the lands described in the complaint as belonging to the plaintiffs. As this agreement contains direct words of grant it will be referred to hereafter as a deed.

2. Deed from East Side Investment Company, dated April 24, 1922, to Merced Irrigation District, a right of way sixty feet in width for the construction of the McCoy canal, and right of way fifty feet in width for the construction of the Stockman canal over portions of the lands of the plaintiffs and substantially along the routes of said canals as they were subsequently constructed over the land described in said deed.

3. Deed between said parties of the same date, of right of way fifty feet in width for the Stockman canal over other lands, now owned by the plaintiffs and described in the complaint, on a portion of which the said Stockman canal was subsequently constructed and is now maintained.

4. Deed from Lyon & Hoag, a corporation, one of the plaintiffs herein to the Merced Irrigation District, dated May 3, 1922, of a right of way fifty feet in width for portion of Stockman canal as the same was subsequently constructed over a part of the land described in the complaint.

Upon the question of the statute of limitations set up in the defendant’s amended answer the court found that each and every cause of action stated in the complaint was barred by the provisions of subdivisions 1 and 2 of section 338, and subdivision 1 of section 339 of the Code of Civil Procedure.

As before noted, the court apparently found in favor of plaintiffs as to one of the issues made by the pleadings. This finding is found in paragraph XVIII of the findings. We are satisfied that there is a clerical error in this .finding as it appears in the record before us, in that

“That it is true that during the years 1921 and 1922 the plaintiffs herein and each of them represented repeatedly to defendant that they respectively were interested in certain portions of that certain tract of land known as the Titus ranch, and shown on the map attached to defendant’s answer and marked ‘Exhibit “A” ’, including the lands described in said complaint, and the plaintiffs repeatedly urged, and each of them repeatedly urged, defendant to hasten the construction of canals to and through said Titus ranch to provide water for the irrigation of all the lands therein which were included within defendant district; and said plaintiffs and each of them offered to and did cooperate with defendant in removing objections to defendant’s use of the rights of way selected by defendant for certain of said canals; that plaintiffs and each of them at all times well knew that all the land in said Titus ranch was of a sandy nature and that said ranch contained numerous swales and depressions, and that the ground water in said Titus ranch was at all times near to and at certain times higher than the bottoms of certain of said swales and depressions; that plaintiffs and each of them knew the plans of defendant for the construction of said canals and of the necessity of constructing said canals with high banks across said swales and depressions in order that all of said land might be irrigated; that plaintiffs and each of them at all times knew that defendant had no funds with which to pay for lining any portions of said canals with concrete and would not have funds for that purpose for many years after the construction of said canals, and plaintiffs and each of them at all times well knew that defendant had planned a gradual development of a comprehensive system of drainage; that notwithstanding their knowledge of the facts aforesaid,

plaintiffs and each of them repeatedly urged defendant during the winter and spring of 1923 to complete certain canals constructed by defendant in said Titus ranch in the year 1922 for permanent use of defendant in supplying water for the irrigation of lands in said district, including the lands described in said complaint, and repeatedly urged defendant to hasten the delivery and continue the delivery of water in 1923 and 1924 through said canals as the same had been so constructed ;• that defendant, in response to said urgings of plaintiffs and each of them, did hasten the construction of said canals and the delivery of water to said lands, including the lands described in said complaint as urged and requested by plaintiffs, and did construct said canals as urged by the plaintiffs, at the places and in the manner so urged by plaintiffs, and by each of them, and with the soil through which said canals were constructed, and defendant believed, and was led by the aforesaid repeated urging of plaintiffs and each of them to believe, that the plaintiffs and each of them would consider that any damage that might be caused by the seeping or breaking of water from said canals would be necessary and incidental to the development of said Titus ranch by means of irrigation from said canals; that defendant would not have constructed said canals or any canals to said lands described in said complaint, and would not have constructed said canals with high banks across said swales and depressions except for said repeated urging of plaintiffs and each of them, and unless it had understood and believed that plaintiffs and each of them would consider the construction of said canals aforesaid as the full performance of defendant’s duty to plaintiffs and to other owners of land to be irrigated from the said canals.”

Before passing to the consideration of the questions arising from the appeal from the judgment, denying plaintiffs’ prayer for an injunction and damages, we will set forth the nature and character of plaintiffs’ second cause of action, in which they ask for a mandatory injunction directing and commanding the defendant to forthwith construct and install suitable drainage works to drain the lands of the plaintiffs and to remove therefrom water brought thereon by the defendant.

To the allegations contained in this cause of action, the defendant in its amended answer to the complaint made answer consisting of certain admissions and denials, and a further recitation of facts as to the drainage conditions existing in said district, and the efforts made by the defendant to remedy these conditions, and as the court’s findings follow in all substantial respects the allegations of the answer, it will not be necessary to separately state these allegations, but we will pass to the findings of the court in response to the issues made by the pleadings in this cause of action. Preliminary to the statement of facts as found by the court, it might be well to state that the defendant admits that it is under obligation, in so far as the funds of the district will permit, to provide for drainage facilities

Then follows the following finding: “That all drainage pumping plants have been operated since their installation whenever necessary for the control of ground water; that

A further finding of the court is to the effect that none of the lands of the plaintiffs are entitled to be supplied by defendant with facilities for drainage, except such facilities as may from time to time be found necessary by the board of directors of the defendant in pursuance of the comprehensive plan for the control of ground water adopted by the district; that the district had on hand at the commencement of this action no funds available for drainage purposes; that the district since the commencement of this action has raised no money for the purpose or available for drainage purposes, except such money as has been expended by the district for that purpose. In addition to the foregoing the court also made the following findings:

“That it is true that defendant has done all that it could reasonably and fairly and equitably do for the drainage of plaintiffs’ said lands and the control of the ground water flowing therein and thereto, with the funds available for that purpose, and that the money heretofore expended by defendant for the control of ground wrater and canal lining as set forth was all the money that could have been fairly and equitably expended for that purpose.” . . .

“That it is not true that defendant has refused to construct drainage works for the lands described in the complaint. That it is not true that defendant has constructed only one drainage well for the benefit of the land described in the complaint. That it is true that defendant has made provision for the drainage and protection of said lands in accordance with the best, fair and honest judgment of the board of directors and the necessities and funds of the district.” .

The first attack upon the judgment is that the findings are not supported by the evidence. Some eight different assignments are stated in plaintiffs’ brief in which they claim the evidence is insufficient. This statement is brief and does not attempt to do more than assign the grounds upon which plaintiffs rely in support of their contention that the evidence is insufficient.

Plaintiffs have not indicated in their brief any particular testimony on which they rely in support of their contention that the findings are not supported by the evidence, nor have they pointed out or attempted to, any lack, defect, or deficiency in the evidence on the part of the defendant which would render' it subject to plaintiffs’ attack. Plaintiffs’' brief contains a comparatively short general resume of the • evidence without a single reference to the reporter's transcript and with the mention of the names of only three witnesses out of the forty or more witnesses who testified during the trial. In the place of an argument as to the facts of the case, the plaintiffs have inserted in their brief what purports to be the testimony in the case reduced to narrative form consisting of some 165 pages of closely printed matter, preceding it with the following statement: “The main facts in the case are all established by positive engineering testimony of both parties, and it is without any material conflict. We recognize the burden that we are required to place upon the court in asking it to review the findings, and we do not wish to do so on a mere argument as to the facts, and have, therefore, carefully reduced the testimony of the witnesses for both parties to narrative form and, with the resume which we have already made of it, that testimony we deem the best answer to the findings in the case.”

In such a case it is not the duty of the court to discover, even if it were able to do so, the particular evidence upon which the plaintiffs rely. On the other hand, the decisions of this court are to the effect that this burden is with the party assailing the finding. In Duncan v. Ramish, 142 Cal. 686 , 689 [ 76 Pac. 661 ], where a like situation arose, the

We feel that the language quoted from the foregoing authorities correctly states the situation in the present action.

It is true that these two witnesses were engineers and plaintiffs state in their brief that “the facts in the case are all established by positive engineering testimony,” but there is nothing to show the court, unless we review the entire typewritten record in the case, that at least some of the other twenty-eight witnesses who testified for defendant did not either give “engineering testimony” or testimony which, while not strictly of that nature, was of such weight and character as to have a material bearing upon many of the issues of the case. For these reasons we find ourselves at great disadvantage in reviewing the points made by the plaintiffs in respect to the insufficiency of the evidence to support the findings. We have, however, carefully gone over the narrative statement of the evidence prepared by the plaintiffs, with such other parts of the testimony as appear to have a material bearing upon the questions raised by plaintiffs’ attack upon the findings.

Among other findings the court found that the plaintiffs were barred from relief, either equitable or legal, because they or their predecessors in interest had deeded rights of way for the canals as constructed on their lands, or had consented or acquiesced in the construction of said canals. Plaintiffs do not question the execution and delivery of the deeds heretofore mentioned nor that they were bound

The defendant, the Merced Irrigation District, is an agency of the state, and the use to which water owned and controlled by it is put is a public use. The law is too well established in this state to require any extended citation of authorities that where the owner of property acquiesces in, or even stands by and makes no suitable objection to, its use for a public purpose, he cannot thereafter enjoin the con

In the case of Conaway v. Yolo Water & Power Co., supra, it was held that: “In such ease, if he has suffered damage to his property ... he is, of course, entitled to be compensated in damages.” This brings us to a consideration of the question of damages which the plaintiffs contend they are entitled to by reason of the maintenance and operation of said canals upon their lands. Are the plaintiffs barred from recovering such damages by reason of the conveyances executed by them and their predecessors in interest, under which by far the greater, if not all, of said canals and laterals were constructed, and by their acquiescence and consent to the construction of all of said canals and laterals?

We have already referred to certain deeds executed either by the plaintiffs or their predecessors in interest, under which some of the canals complained of were constructed over the plaintiffs’ lands. Besides these deeds conveying

Nevertheless, the plaintiffs contend that they are entitled to damages under the Constitution of the state, which provides that private property shall not be taken or damaged for public use without just compensation having been first made to the owner. (Const., art. I, sec. 14.) Plaintiffs contend that they occupy the same position regarding their right to recover damages claimed to have been sustained by reason of the seepage from defendant’s canals, as if, instead of securing grants of rights of way, and rights by acquiescence and consent, the defendant had by condemnation proceedings acquired the right to construct said canals over the lands of plaintiffs. In Sternes v. Sutter Butte Canal Co., 61 Cal. App. 737 , 741 [ 216 Pac. 66 ], it was held, “that a grant of a right of way, in general terms, is the exact counterpart of whatever damages would be considered and determined by the court and allowed in condemnation proceedings”. We think the same rule would apply when instead of a grant deed the land owner expressly agreed to the taking of his property for public use. In case private property has been taken by condemnation the rule

Under these circumstances the plaintiffs, in respect to their right to recover damages for seepage of water upon their lands from defendant’s canals, are in the same position as they would have been in had the defendant condemned the right to construct said canals upon plaintiffs’ lands. If damages for seepage could be recovered in a condemnation proceeding, then the plaintiffs, having expressly given their consent to the construction of said canals upon their lands, are precluded from thereafter recovering any damages which they may have sustained from the seepage of water therefrom. In the case of Sternes v. Sutter Butte Canal Co., supra, this question was squarely before the court, with the result that the court held that damages for seepage was a proper item to be taken into consideration by the court in determining in a condemnation proceeding the extent and amount of defendants’ damage. That.part of the opinion in that case bearing upon this question is to be found on page 742 and is as follows: “That damages inflicted upon land not taken by seepage may be considered in condemnation proceedings seems clearly allowable. In Denver City Irr. Co. v. Middaugh, 12 Colo. 434 [ 13 Am. St. Rep. 234 , 21 Pac. 565 ], the court thus expressed its views: ‘In assessing damages in condemnation proceedings for lands taken for the purpose of constructing a ditch or reservoir thereon, injuries likely to result from seepage and leakage from such canal or reservoir would naturally be among the first items to occur to a jury’. Further: ‘An examination of the reported eases shows that there is no substantial difference

“In the more recent case of Farmers’ Reservoir & Irr. Co. v. Cooper, 54 Colo. 402 [ 130 Pac. 1004 ], the supreme court of Colorado uses the following language: ‘In condemnation proceedings all damages, present and prospective, that are the natural, necessary or reasonable incident of taking the property sought to be condemned, must be assessed. ’ It was there held that seepage, and damages resulting from seepage, constituted an incident to be considered by the court or jury whenever land was taken for a right of way to construct a canal.”

"We, find nothing contrary to this decision. Plaintiffs have cited the case of Turpen v. Turlock Irr. Dist., 141 Cal. 1 [ 74 Pac. 295 ], where the trial court expressly found that the canals were negligently constructed and this court held that “damages caused by the seepage from faulty construction of the canal could not have well been anticipated, and were not included in the condemnation proceeding.” Such damage was not the natural, necessary and reasonable incident to the use and operation of said canal. In the present action the court found that the canals and laterals were constructed with care, skill and prudence and in a workmanlike manner. Plaintiffs do not question this finding. The seepage therefrom was only in such quantities as was usual and unavoidable from canals of that character constructed over lands like the plaintiffs’. It was therefore but the natural, necessary and reasonable incident to the use and operation of said canals. It was such damage as could be recovered in an action of condemnation. Quoting further from Sternes v. Sutter Butte Canal Co., p. 743 of 61 Cal. App., the court said: “It thus appears by an unbroken line of authorities, and also as well by good reasoning, that whenever a grant of a right of way is executed by a land owner he thereby estops himself from afterward prosecuting any action for the past, present or future damages that

We have no question that the facts in this case bring it within the rule announced above. Plaintiffs concede that their lands were sandy and porous in character. They, and their predecessors in interest, well knew that canals constructed over them would cause more or less seepage. They did not in their conveyance or rights of way, or in any other manner make any provision to protect themselves against such damages, or require of defendant that it construct any particular kind of canal or that the canals be constructed of any material different from the soil and materials through which they were built. Plaintiffs admit that they knew that said canals would seep large quantities of water unless they were lined with cement and that this knowledge was gained from reading a report prepared by J. D. Galloway, an engineer employed by the district to make investigations regarding the conditions in the district preparatory to the preparation and adoption by the district of plans for a comprehensive irrigation system. This report was prepared and presented to the district some time prior to June 23, 1921, as we find on that date Mr. Galloway presented a supplemental report to the board of directors of the district. We have been unable to determine the date of the original report. The supplemental report was filed almost a year before the two deeds of rights of way from the East Side Investment Company to the district were executed and about the same length of time before the date of the deed from the plaintiff Lyon & Hoag to the district. In none of these deeds is there to be found any provision for the lining of the canals or for the protection of the grantors from damage due to seepage. Considerable correspondence passed between the several plaintiffs and the district before and during the time the canals and laterals complained of were being constructed, and our attention has not been directed to a single line in this correspondence in

Plaintiffs make the claim, however, that they and their predecessors in interest were led to believe by the defendant that they would be protected from any damage which might arise from seepage and that said grants of rights of way and their acquiescence and consent to the construction of said canals were obtained under the belief that the defendant would line said canals with cement, and would install appliances for the drainage of said lands, should the same require drainage. This claim is based almost, if not entirely, upon the report of Engineer Galloway already referred to. This report, as we have seen, was prepared by Mr. Galloway for the district before the district began the construction of its irrigation system and for the purpose of providing a comprehensive plan under which the district could work and install an adequate and proper system for the irrigation of the lands of the district. In his report, Mr. Galloway emphasized the drainage problem as one of the serious problems with which the district would have to contend after its irrigation system was in operation. He

The court found that the defendant had not damaged the plaintiffs in the “particulars set forth in plaintiffs’ complaint or any of said particulars, or in any other manner or in any amount at all”. There is no question that the water plane under plaintiffs’ lands is higher now, or was at the time of the trial than it was in years previous and before the canals of the defendant had been constructed upon their lands. There was also ample evidence to support a finding

Conceding that the evidence shows that there was some increase in this rise of water after the date defendant began its operations, there is ample evidence in the record to account for a material part, if not all, of said increase. In January, T922, the defendant district acquired the irrigation system of the Croeker-Huffman Company. At that time there were only 52,000 acres of land under irrigation. The district immediately began to extend the irrigation system acquired by it not only to lands lying northeast and east of the Titus ranch, but into the Titus ranch itself. In 1924, there were 66,000 acres irrigated in the district; in 1925, 93,000; in 1926, 103,000, and in 1927, 112,000 acres. As we have seen, the plaintiffs’ lands were located in practically the lowest part of the district and necessarily they would receive an increased amount of underground water as irrigation was extended to the lands in other parts of the district. So whatever increase there was in the elevation of the water

There are other specifications as to the insufficiency of the evidence but they relate to minor matters and we deem it unnecessary to give them any special consideration for the reason that if we are correct in the views expressed above, these other questions are of no material importance. For the same reason we consider it unnecessary to pass upon the question as to whether the plaintiffs’ cause of action is barred by the statute of limitations or to discuss other findings of the court made in response to said affirmative answer. If plaintiffs have failed to sustain the cause of action alleged in the complaint, as we have held they have, then it is of no consequence, in so far as this action is concerned, whether the alleged cause of action is or is not barred by the statute of limitations, or whether or not certain of the affirmative defenses were sustained by the evidence.

Plaintiffs’ second cause of action, in which they ask for a mandatory injunction requiring the defendant to install suitable drainage works to drain their lands and to remove therefrom the water brought to said lands by the defendant is predicated upon an act of the legislature entitled, “An Act to provide for drainage by irrigation districts’’. (Stats. 1907, p. 569.) Section 1 of this act empowers an irrigation

It is the contention of the plaintiffs that the duty of an irrigation district to furnish drainage to lands within the district requiring the same is expressly enjoined upon it by this statute, and therefore such duty may be enforced by mandate of the court. (Code Civ. Proc., sec. 1085.)

There can be no question but that by this act of the legislature, an irrigation district is given the power and authority to provide for drainage made necessary by the operation of the irrigation system installed and operated by the district. It is equally clear that this act makes it the duty of an irrigation district to provide for such drainage. Being a duty enjoined by law, it can be enforced by a mandate of court. "NThether in a particular case a land owner in the district can invoke the aid of the court to compel the district to perform the duty imposed upon it by the statute would depend upon the facts of that particular case. There are two propositions at least which must be established before a court would be justified in issuing the mandate requiring the district to perform the duty of providing drainage. The first of these is that the land owner in the district must prove by satisfactory and sufficient evidence that his lands are in need of drainage made necessary by the irrigation operations of the district, and the second is whether the district is acting under the power conferred upon it by the statute and is doing all within its power to perform the duty enjoined upon it by the statute.

We will now pass to the second of the two propositions stated above, and in its consideration we will endeavor to determine what steps, if any, the defendant has taken toward discharging the duty enjoined upon it by the statute to drain plaintiffs’ lands, and whether the same have been such as to constitute a reasonable compliance with the requirements of the statute. We have already referred to the report of Engineer Galloway, made before the district had begun any of its irrigation operations. In that report the question of drainage was given extended consideration and the best means of draining lands of the character of those composing the district were outlined in said report with great care. Following the installation by the district of its irrigation system, as shown by the findings quoted above, large sums of money were expended by the district in the lining of its canals, so as to prevent seepage therefrom upon adjacent lands, and in sinking wells and installing pumps thereon for the purpose of extracting water that had as a result of the irrigation in the district flowed into and collected under the lands in certain parts of the district. No question is raised but that the means thus employed were

But disregarding what the district may have since done, the evidence shows that up to the time of the trial it had followed a consistent, effective and comprehensive plan for the drainage of the lands in the district, including those of the plaintiffs, and with particular reference to the efforts of the district to drain the • lands of the plaintiffs of the underground water therein, the court found: “That the defendant has done all that it could reasonably and fairly and equitably do for the drainage of plaintiffs’ lands, and the control of the ground water flowing therein and thereto, with the funds available for that purpose and that the money heretofore expended by defendant for the control of the ground water and the canal lining as set forth was all the money that could have been fairly and equitably expended for that purpose.”

It is true that the district has not yet solved its drainage problems, nor has it installed sufficient and adequate equipment to thoroughly drain all of plaintiffs’ lands. In fact, the evidence shows that at the time of the trial, large bodies of plaintiffs’ lands were injuriously affected by surface waters that had accumulated in and under said lands as a result of the irrigation of lands in the district. Plaintiffs insist that under the statute they are entitled to have their lands, if not absolutely, at least reasonably drained and freed from the water that has thus accumulated thereunder. Under a proper showing they would undoubtedly be entitled to this relief, but not under the facts proven in this proceeding. The plaintiffs are, of course, entitled no no greater right than any other land owner in the district whose lands are situated and affected similarly as those of the plaintiffs. There is evidence in the record, which we think is uncontradicted, that there are 50,000 acres of land in the district in need of drainage on the average more seriously than do

In the Nelson case, the court said: “By finding 16 it appears that there is no money available, and cannot be made available, for the immediate construction of lateral 3-1-2, under the law authorizing an assessment of two per cent of the aggregate value of the lands within the district, as provided by chapter 291 of the statutes of the state of California enacted in 1919; and that the amount of money in said fund so created does not exceed the aggregate of the duly authorized and issued warrants of said ■ Irrigation district. As to when any of the funds of the district can be used for construction purposes, and what steps must be taken to authorize such use, have been discussed by this court in Buschmann v. Turlock Irr. Dist., 47 Cal. App. 321 [ 190 Pac. 491 ], and need not here be repeated. And until these funds are available for the construction of the canals, ditches, and laterals authorized by the voters of the district, it is evident that this court can issue no mandate requiring the immediate undertaking of such work. It will be presumed that the directors of the district will expend the money for the purposes for which it has been raised, and the fact that the directors of the district were not able to complete the construction of the lateral referred to out of the moneys raised as the proceeds of prior bond issues does not authorize the issuance of the writ of mandate. It must be first shown that the money is available before its application can be directed. We do not deem it necessary to cite authorities upon this point.” j

Our conclusion, therefore, as to the second proposition stated above, is that the defendant district recognizes the duty imposed upon it by the statute and is endeavoring to comply with the requirements of said statute. While it has not succeeded in discharging this duty to its fullest extent, it has done all that could reasonably be required'of it with the money available for that purpose, and which the resources of the district will permit. Under such a state of facts, the writ of mandate will not lie. The writ is

The present action appears to have been thoroughly tried in the court belbw, the trial lasting about six weeks, and the reporter’s transcript covering over 2,000- pages. Every phase of the drainage problems of the district was minutely gone into by each side through experienced engineers and able counsel. The trial judge visited the district and personally examined the lands therein and ascertained their condition in respect to drainage needs. He had the benefit of an inspection of the canals of the district, their susceptibility to seepage and the facilities installed by the district for the purpose of overcoming this seepage and of draining the underground waters underlying the lands of the district. The case was also thoroughly argued before the trial court. The brief of the plaintiffs, who are the appellants, is, as stated therein, simply an answer to the argument made by the district before the trial court. That nothing additional was contained in the defendant’s brief in this court to that presented to the trial court, is indicated by the fact that the plaintiffs have filed no reply herein- to the brief of the defendant. With these matters thus presented at the trial, that court refused to issue a mandatory injunction as prayed for by the plaintiffs. As we view the record before us, and as indicated in the views above expressed, we find no reason that would justify this court in holding that the trial court erred in its denial of said writ. We are, therefore, of

The judgment appealed from is affirmed.

Shenk, J., Richards, J., Waste, C. J., Seawell, J., Preston, J., and Langdon, J., concurred.

Rehearing denied.