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that defendant was in fact under eighteen years of age, however much evidence as to that matter elicited on the trial from defendant's witnesses may indicate such to be the situation. Nor can it be held in view of the circumstances of this case as shown by the record and already etailed that there was any error committed by the superior court in this matter. As we have said, action of that court looking to investigation under the juvenile court act upon the theory that defendant was under eighteen years of age was never invoked or even suggested, and whatever might have been the duty of the court in the event of such a suggestion or request, a matter which it is not necessary here to consider, we are satisfied that the mere fact that certain evidence elicited on the trial of a defendant for a crime tended to show that he is under eighteen years of age does not require the superior court to take any such action on its own motion.

We find nothing in the record warranting a reversal.
The judgment and order denying a new trial are affirmed.
ANGELLOTTI, C. J.

We concur:

MELVIN, J.
SHAW, J.
HENSHAW, J.
LORIGAN, J.

LAWLOR, J.
SLOSS, J.

V.

S. F. No. 6538. In Bank. May 20, 1915. J. A. ANDREW FRANSCIONI, Plaintiff and Respondent, SOLEDAD LAND AND WATER COMPANY, Defendant and Appellant.

[1] WATER RIGHTS-SALE OF IRRIGATED FARM LOTS-RIGHT TO WATER EASEMENT APPURTENANT TO LOTS.-Where an owner of a tract of land develops the water supply thereon, erects a pumping plant, subdivides the land into suitable farm lots, builds ditches from the plant to the several lots for the purpose of carrying water to each lot for its irrigation and thereupon sells the lots to purchasers, an easement appurtenant to the lots and a corresponding servitude upon the water system is created, whereby the purchasers and their successors in ownership become entitled to demand and receive from the water system upon payment of the established rates a supply of water for the irrigation of the lots purchased, and the owner of the land becomes bound to continue the supply so long as the source holds out.

[2] ID.-ID.-ID.-ADDITIONAL RIGHT TO WATER-ESTABLISHMENT BY CODE PROVISION.-The purchasers under such circumstances also become entitled to receive the water by virtue of the provisions of section 552 of the Civil Code.

[3] ID.-WATER CORPORATIONS PURCHASERS OF IRRIGATED LANDS -RIGHT TO WATER-CODE SECTION CONSTITUTIONAL.-Section 552 of the Civil Code is constitutional, and there is nothing in the claim that it is class legislation because it applies only to domestic corporations.

[4] ID.-ID.-PRIVATE WATER CORPORATION-CHANGE TO PUBLIC SERVICE CORPORATION-LAWFUL PROCEDURE.-A corporation owning a water supply and engaged in distributing it to persons whose land it has agreed to deliver it for irrigation upon a use which

is private and not public or general, may, 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, and when this 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.

[5] ID.-ID.-ID.-ID.-FIXING OF WATER RATES BY BOARD OF SUPERVISORS APPLICATION OF PRIVATE CORPORATION-EFFECT OF CHANGE OF CHARACTER TO PUBLIC SERVICE CORPORATION-SUBSEQUENT CONVERSION ΤΟ PRIVATE CORPORATION-POWER OF CORPORATION.— Where such a private corporation takes steps to have its water rates established by the board of supervisors of the county as provided by the act of March 12, 1885, which act applies only to persons and corporations engaged in the sale, rental or distribution of water for public use, and the board pursuant thereto passes an ordinance fixing such rates, such corporation thereby becomes a public service corporation, and it is not within its power to thereafter change its character into a private corporation without the consent, express or implied, of all the beneficiaries of the use.

[6] ID. CORPORATION LAW-SIGNING AND FILING OF PETITION FOR FIXING WATER RATES-SUFFICIENT AUTHORIZATION.-Sufficient authorization for the signing and filing of a petition on behalf of a private water corporation to have its water rates established by the county board of supervisors is shown, where the petition is signed by the secretary of the corporation in his official character and it is shown by the organizer and manager of the corporation that steps were taken by the corporation to have the board establish the rates.

[7] ID. PLEADING AMENDMENT OF COMPLAINT CHANGE OF PRAYER PROCEEDING IN MANDAMUS-ACTION FOR EQUITABLE RELIEF -DEFENDANT NOT PREJUDICED.-The defendant in a proceeding in mandamus to compel the delivery of water to plaintiff's land on payment of the established rates is not substantially injured by an amendment of the complaint 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 the water, where the facts necessary to support the prayer of the amended pleading are alleged in the original complaint, and the case tried on the theory that it was an action for equitable relief.

[8] ID.-ID.-CHANGE IRREGULAR.-It is irregular under our system of procedure to change a proceeding in mandamus to an action for equitable relief or for the recovery of damages by an amendment of the complaint.

Appeal from the Superior Court of Monterey County-B. V. Sargent, Judge.

For Appellant-Wallace M. Pence and F. P. Feliz.

For Respondent-Zabala & Bardin.

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 higher rates and upon unwarranted conditions, and denies the plaintiff's right thereto, whereby the plaintiff has been damaged by the loss of crops from want of irrigation of the lots, in a sum stated, for which he asks judgment. He also asks judgment that he be declared entitled to receive water from said plant on demand and payment of the established rates. The right of the plaintiff, as alleged in this count, is a private right granted to his predecessor in interest under certain agreements and deeds set forth in the complaint. It does not go upon the theory that the water of the defendant is devoted to public use, or that the plaintiff is a beneficiary of such use and as such entitled to the water.

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 defendant 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.

[1] 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 1675 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 ditches there from leading to the several lots and began the irriga tion of the lots therefrom, including the lots of plaintiff. Thereafter, in 1898, he agreed to sell these two lots, with the appurte nances, to Kelly, plaintiff's immediate grantor, and in 1899, in compliance with the agreement, the same were conveyed to Kelly,

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with the appurtenances, the deed reserving to the grantor the right to maintain the ditches then in use to carry water to said lots and other lots in the subdivision and all rights of way thereon. In 1905, Kelly conveyed the lots with the appurtenances to the plaintiff. From the time of the sale to Kelly in 1898, until the refusal of the defendant to deliver water, in December, 1910, water from said plant was regularly delivered to said lots on demand of the owner and used thereon for irrigation. It was delivered by Gould until June, 1899. The defendant corporation was formed at that time and Gould conveyed to it all his property and rights in the water system, upon its agreement to carry out his obligations to the several purchasers of lots regarding the water due them. Thereafter the delivery was made by the defendant. When Gould began irrigating these lots from his water plant through the ditches built by him and thereafter sold the lots with this irri tion system in operation, an easement appurtenant to the lots and a corresponding servitude upon the water system was created, whereby the purchaser and his successors in ownership became enitled to demand and receive from the water system a supply of water for the irrigation of the lot purchased, and the owner of the plant became bound to continue the supply so long as the source held out. It was an easement annexed to the land by use prior to and at the time of the sale thereof, and it passed with the conveyance of the land, first to Kelly and then to the plaintiff. (Farmer v. Ukiah Water Co., 56 Cal. 11; Smith v. Corbit, 116 Cal. 591.) [2] The plaintiff also became entitled to receive the water from the defendant by virtue of the provisions of section 552 of the Civil Code. That section is as follows:

"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 would 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 which such public use is necessa

rily 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; Arroyo Ditch etc. Co. v. Bequette, 149 Cal. 546; Walnut Irr. Dist. v. Burke, 158 Cal. 170; Garrison v. North Pasadena etc. Co., 163 Cal. 239; Thayer v. California Dev. Co., 164 Cal. 129.)

[3] 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 show 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 count are true so far as they relate to this subject. We need not set out the facts at length.

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., supra.)

[4] 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.

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