Page images
PDF
EPUB

to such right-of-way, may have a substantial value to the owner of the fee. Our conslusion is that, while the right-of-way cannot be assessed, the land itself is land fronting upon the street within the meaning of the street work act, and under the limitations defined is subject to assessment.

But it is suggested on behalf of appellant that the property owners aggrieved by the assessment as it was made did not, within the time required by law, appeal to the board of trustees from the assessment, and that since they did not so appeal the assessment became final and is not further subject to attack on account of the alleged errors. The statute declares that no assessment shall be held invalid, except upon appeal to the city council as provided in section 11 of the street work act, for any error, informality, or other defect in any of the proceedings prior to the assessment, or in the assessment itself, where notice of the intention of the city council to order the work to be done has been published in accordance with law.

[9] Appellant further calls attention to the fact that on June 26, 1911, four days before issuance of the warrant of assessment in the case at bar, there became effective an amendment to section 4 of the street improvement bond act, providing that bonds issued thereunder "shall be conclusive evidence of the regularity of all proceedings thereto under said street work act and under this act, previous to the making of the certified list of all assessments unpaid to the amount of twenty-five dollars or over by the street superintendent to the city treasurer, and of the validity of said lien up to the date of said list". (Stats. 1911, p. 1204.) In Chase v. Trout, 146 Cal. 350, the supreme court declared its interpretation of the meaning of the conclusive evidence clause as formerly contained in the same section of the statute. Without repeating at length the principles there set forth, we find the decision in substance to be that under the quoted clause of the statute the issuance of the bonds shall be conclusive evidence of the regularity of the performance of all the required steps in the proceedings leading up to the bonds, excepting those that are necessary to constitute due process of law, or to comply with any other constitutional prerequisite. Answering the question as to what are the essentials the non-observance of which cannot be cured, one item specified is that there must be an assessment or apportionment of the amount to be raised. The court there calls attention to the fact (citing Bolton v. Gilleran, 105 Cal. 244) that power could not be given to the street superintendent to change the amount of the contract price and of the assessment. Such attempted plan would be beyond the reach of a curative provision, because it would give power to that officer to improve the street and levy an assessment without a substantial compliance with the constitutional conditions. After pointing out some of the objections made to the proceedings in that case, the court said: "All of them relate to the manner of the work and the method of procedure to get it done, and not to the subjects of the notice to the owners, the hearing

of grievances, the fact that work was done, nor to the existence of a uniform assessment."

[8] But in the case at bar the claim is, under the facts to which we have referred, that the attempted assessment made wholly against the lots on the easterly side of Melvin avenue is not a uniform assessment, and that on its face it shows a wilful failure to make an assessment according to the plan provided by law. We think this claim should be sustained, and that the assessment belongs to that class where the owner may, without appealing to the city council, resist the enforcement of the assessment because it is void on its face. In Perine v. Lewis, 128 Cal. 236, 241, referring to an assessment made upon a plan not in accordance with the law and which resulted in assessing certain lots in double the right amount, the court said: "As the objection did not require extrinsic evidence for the purpose of establishing the fact, but the assessment appeared upon its face to have been made in violation of the statute, the defendants are not precluded from making the objection without having previously appealed to the board of supervisors." To the same effect is Kenny v. Kelly, 113 Cal. 364. In San Diego Investment Co. v. Shaw, 129 Cal. 273, no question was raised with respect to the right of the property owner to resist the enforcement of a street assessment lien for irregularities that might have been passed upon by the city council, but it was there directly decided that where the whole cost of certain street grading work was apportioned and assessed against the lots fronting on one side of the street, when according to the statute both sides should have been assessed, the assessment was void and the lien claimed thereunder could not be enforced.

Since the assessment in the present case was void upon its face, and since the bonds issued pursuant to such assessment were also void, it follows that no duty has devolved upon the defendant city treasurer to foreclose those bonds or sell the property described therein. This being so, the appellant is not injured or aggrieved by the affirmative part of the judgment which directs that defendant cancel of record the bonds and assessments described in plaintiff's petition."

The judgment is affirmed.

L. A. No. 3446. Department Two. April 2, 1915. ESCONDIDO MUTUAL WATER COMPANY (a Corporation), Plaintiff and Respondent, v. CITY OF ESCONDIDO (a Municipal Corporation), Defendant and Appellant.

[1] WATER CORPORATIONS-FURNISHING OF WATER TO MUNICIPAL CORPORATION-CONTRACT BETWEEN MUTUAL WATER COMPANY AND MUNICIPALITY RIGHT TO ADDITIONAL WATER.-Where a mutual water company furnishes to a municipal corporation the proportionate share of water to which such municipality is entitled by virtue of its relationship to the water company as one of its stockholders, it is not entitled to additional water without purchasing additional stock, on the theory that the company having voluntarily undertaken the duty of furnishing the municipality with water for its inhabitants and for municipal purposes, it thereby dedicated to

the municipal use all of the water which its growing needs might require.

[2] ID. CESSATION OF PUBLIC USE IN WATER.-A public use in waters may cease and determine, and this may be accomplished by consent of all parties in interest, or by operation of law.

[3] ID. ABANDONMENT OF PUBLIC USE. It is only the use of water appropriated for sale, rental or distribution which is a public use under the constitution, and while it is true that when any water has been so devoted to a public use, the public, and each individual member thereof as a part of the public, has a right to the continued use of that water, so that the use may not be changed to the injury of those entitled to rely upon its continuance, and, if abandoned by the purveyors of the use, may be taken over to the end that the use may be continued, it by no means follows that the public use impressed upon any water supply may not be abandoned.

Appeal from the Superior Court of San Diego County-W. A Sloane, Judge.

For Appellant-A. M. Thompson, J. C. Hizar.

For Respondent-Wright & Winnek.

Plaintiff pleaded that it is a mutual water company, organized under the laws of the state of California; that the defendant, at the time of plaintiff's organization, subscribed for. purchased and ever since has been the owner of a given number of shares of its capital stock; that by virtue of the law of its creation and by virtue of its by-laws, it was plaintiff's duty to apportion the water which it controlled and allot it to its stockholders in the proportion which their shares of stock bore to the total issued stock of the company; that it so did and notified defendant of the amount of water to which the latter would be entitled for the year beginning on the first day of May, 1911; that by August, 1911, the defendant had used and consumed all of the water which it was entitled to receive from plaintiff; that plaintiff notified defendant of this fact, and further informed defendant that it was entitled to receive no more water unless it secured the right to additional water by the purchase of additional stock. Defendant refused to consider this suggestion and plaintiff caused defendant's supply of water to be shut off. Whereupon defendant, through its town marshal, turned on the supply and continued to use additional water, in violation of the law and of the rights of plaintiff. Plaintiff, as a mutual water company, secures, impounds and distributes water to its stockholders ratably and at cost. By the law of its creation it is not a corporation organized for profit, and this illegal and unwarranted taking by defendant of plaintiff's water is to the great injury of plaintiff's other stockholders, the trustee for all of whom plaintiff is. Plaintiff prayed for an injunction to restrain these illegal acts. The complaint was verified. Defendant answered by denial. It admitted and pleaded that it did own the shares of stock of plaintiff which plaintiff asserted that it owned, but denied that it owned them in any other way "except as a mere incident to the land held by said city for public purposes, and that said stock is appurtenant to the land SO held by the city of Escondido". Affirmatively it alleged that "the Land & Town

Company of Escondido constructed the water system in the city of Escondido; that thereafter the Escondido Irrigation District purchased said system, and that said Escondido Irrigation District purchased water and constructed a reservoir, all of which water was held in trust for distribution in the district of which the city of Escondido is a part. That said water so impounded was sold to the inhabitants of said District; that thereafter the plaintiff became the purchaser of the holdings of the Escondido Irrigation District; that said water so obtained by plaintiff is subject to all of the conditions impressed by the laws of the state of California thereon; that the said plaintiff has continued to furnish water to numerous parties in the city of Escondido in the same manner in which the same was furnished and under all of the conditions as the same was furnished by the Escondido Irrigation District. That the city of Escondido, exercising its functions as a municipal corporation, constructed a sewer system; that after said sewer system was constructed said city applied to the plaintiff for water to flush said sewer system; that thereupon the said plaintiff connected said sewer system with the pipes of plaintiff and has continued ever since to furnish water to plaintiff for said sewer system. That as compensation for said water so furnished by plaintiff the city of Escondido has paid all bills presented by said water company for such water so furnished, and the bills for such service have been presented since the filing of this suit and paid by the city of Escondido to the 30th day of November, 1911. That the city of Escondido owns no shares of the capital stock of the plaintiff corporation in connection with said sewer system, or in any manner connected therewith. That the city of Escondido does own certain shares of stock in the plaintiff corporation which were delivered to the city of Escondido in connection with certain real estate owned by said city, and not otherwise". The court found all of the allegations of the complaint true. Tuching the affirmative defense of defendant it found: "That plaintiff did, during the year 189.., acquire the reservoir and distributing system now owned by it from the Escondido Irrigation District; that at all times prior to the transfer of said reservoir and distributing system to the Escondido Mutual Water Company the said Escondido Irrigation District was engaged in the diversion, storing and distribution of water as an irrigation district under the laws of the state of California, and was at no time engaged in the diversion, collection, storing and distribution of water as a public service corporation; that at all times since the organization of the Escondido Mutual Water Company and the transfer to it of the reservoir and distributing system referred to in said complaint and answer, said Mutual Water Company has diverted, stored and distributed water to the city of Escondido and its inhabitants under its by-laws, rules and regulations, for cost only and not for profit. That the said city of Escondido, defendant herein, has not purchased water from the plaintiff for its sewer system, and that said defendant, the city of Escondido, has used only the water which was apportioned to it by the Escondido Mutual Water Com

pany, by the resolution referred to in its complaint, making the annual apportionment of water for the year 1911 and ending April 30, 1912, and such additional water as said defendant took from plaintiff's system without plaintiff's consent". In addition to these findings it was stipulated "that in 1886 the Escondido Land and Town Company laid certain pipes in the city of Escondido, or the then town of Escondido, and that through that pipe line, or pipe lines, it supplied water to the inhabitants of the town from wells located near the city; that some years later, to-wit: about the year 1895, the Escondido Irrigation system was organized under what was then known as the Wright Irrigation Act, now known as the Bridgeford Act, and that subsequent to its organization it took over the wells and pipe line that had been laid by the Land and Town Company; that the Escondido Irrigation District filed upon and appropriated and diverted and impounded water from the San Luis Rey River and distributed water to the inhabitants of the Escondido Irrigation District through its aqueducts and from its reservoir located about six miles from the city of Escondido until the year 1905; that during that year, under proceedings brought by the Escondido Irrigation District, under the act of 1903, known as an act to provide for the dissolution of irrigation districts, the Escondido Irrigation District was dissolved by a decree of court, from which no appeal was taken. That the Escondido Mutual Water Company was formed the same year by authority of the same act, being the act of the legislature providing for the dissolution of irrigation districts, passed in the year 1903, for the express purpose of taking over the franchises, distributing system and all of the assets of the Escondido Irrigation District; that a sale was made by the Escondido Irrigation District of its franchises and all its assets, including the distributing system, and all the pipe line which has been constructed by the Land and Town Company, to the Escondido Mutual Water Company. That that sale was approved by the court and thereafter the distributing system, franchises and all of the property became the property of the Escondido Mutual Water ompany. The city of Escondido was part of the Escondido Irrigation District and is now within the territory supplied with water by the Escondido Mutual Water Company."

[1] Appellant's primary and principal contention is that respondent is charged with the public duty of supplying to appellant such water as it may require for municipal purposes. In short, that respondent is a corporation which has undertaken to perform this particular character of public service and may be compelled to continue to do so in accordance with the needs of the municipality up to the capacity of respondent's ability to supply water. Under this general head. appellant's argument is twofold, one branch of it being that plaintiff has voluntarily undertaken the duty of furnishing defendant with water for its inhabitants and for municipal purposes, such as the flushing of its sewers, and having engaged in this public enterprise, under familiar principles, will be compelled to con

« PreviousContinue »