83 Cal. App. 2d 333 | Cal. Ct. App. | 1948
This is an" action by a stockholder in a mutual water company to compel the delivery of water to him in a certain manner.
The defendant corporation was organized in 1912, and since that time has supplied water to its stockholders for domestic use, and for irrigation use upon lands within a certain area, although its name was changed to the present name in 1917. The company has certain wells, pumping plants, reservoirs and pipe lines extending through various portions of the area within the district it was designed to serve. Since 1917, the company has relaid some of these pipe lines as they have worn out but, until after the trial of this action, has not extended these pipe lines or laid new ones. Since 1917, the company has not built any pipe lines to the property of its stockholders, and any additional pipe lines for the purpose of serving water to lands not previously served have been laid by the property owners and not by the company.
In August, 1944, the plaintiff purchased certain land at the edge of the area designed to be served by the company, and on higher ground which had not theretofore been served with irrigation water. The higher part of his land is from 75 to 100 feet higher than the lower portion. He also acquired certain shares in the defendant company. The company serves him with domestic water through a smaller pipe line, but irrigation water has never been furnished to any part of that land. The plaintiff attended a meeting of the defendant’s board of directors in September, 1944, and in response to his request that irrigation water be furnished to him upon his land he was told that if he would lay his own line to hook up with the company system he would receive his proportionate share of available water.
On October 10, 1945, the plaintiff brought this action against the water company and its officers. The first cause of action sought a writ of mandate directing defendants to supply and deliver water to the plaintiff’s land and to the highest point thereon. The second cause of action asked that the defendants be enjoined from selling the plaintiff’s stock by reason of his failure to pay the assessment levied until such time as the company should deliver water to him at the highest point on his land. A third cause of action was for damages claimed to have been sustained by reason of the company’s failure to furnish water in this manner during the crop season of 1945.
After a trial, the court entered a judgment directing the issuance of a writ of mandate requiring the defendants to supply and deliver water to within 50 feet of the plaintiff’s land; restraining the defendants from selling the plaintiff’s stock for default in the payment of assessments until such time as they had complied with the writ of mandate; and denying the plaintiff any relief on his third cause of action. The plaintiff and the defendants separately appealed from portions of this judgment. For convenience, the defendant corporation will be referred to as the defendant.
On his appeal the plaintiff first contends that the articles of incorporation and by-laws of the defendant constitute a contract between him and the defendant; that it conclusively appears from this contract that the defendant was in duty bound to supply his share of water to him and to deliver that water to him at the highest point on his land; that the contract is capable of no other interpretation; and that the
If these provisions of the articles of incorporation and by-laws were alone considered the plaintiff’s novel contention could not be sustained. If such a rule had been applied, few irrigation districts and water companies could have survived and the irrigation development of the state would still be in its infancy.
Aside from the proper interpretation of the provisions thus relied on by the plaintiff, he ignores other provisions of the by-laws. The by-laws also provide that the stockholders shall share equally in the available water in proportion to the shares of stock owned, and not to the amount of land owned or irrigated; that the available water shall be deemed to be the amount capable of actual delivery through the lines of the company; that the water represented by the shares of stock shall not be appurtenant to any specific parcels of land ; that the directors may require the stockholders to designate each season the particular land upon which they propose to use their water; and that “the water produced or delivered by this Company shall only be used by its Stockholders, upon such land as shall be under the flow of the pipe lines or conduits of the Company, and upon which water can be delivered from the mains, conduits, gates and turnouts of the Company, without extra expense to the Company.”
Moreover, the uncontradieted evidence very conclusively shows that during a period of at least 30 years the company had delivered water only at its existing pipe lines;
While the judgment in this respect may have been too favorable to the plaintiff it is not vulnerable to the attack made upon it by the plaintiff, to the effect that it does not go far enough and that it should have required the defendant to deliver water to him at the highest point on his land.
The plaintiff further contends that the evidence is not sufficient to support that part of the judgment denying him relief on his third cause of action. This contention is without merit, both because the defendant was under no obligation to deliver water to the plaintiff at the highest point on his land and because the evidence on the damage issue fully supports the court’s finding and judgment in that regard.
The defendant gave notice of appeal from that portion of the judgment requiring it to deliver water to a point not more than 50 feet from the plaintiff’s land, and from that portion of the judgment restraining it from selling the plaintiff’s stock for nonpayment of assessment until it had complied with the other order. Neither of these matters are directly presented in defendant’s brief. It is contended, however, that the trial court abused its discretion in denying defendant’s motion for permission to file a supplemental answer.
In view of the fact that the court adopted and inserted in its judgment the things which the defendant desired to allege in its supplemental answer no possible prejudice to the defendant resulted. No reason appears in law or in fact for the court’s action in requiring, by its judgment, that the defendant deliver water to a point not more than 50 feet distant from the plaintiff’s land, other than the fact that an offer to do this had been brought to the attention of the court. If there be error in this respect, in the court’s judgment, it was invited by the defendant. The judgment is in accordance with the request made by the defendant and no prejudice appears. This was an equity case and no reason is assigned why the court should not have restrained the sale of the plaintiff’s stock for the nonpayment of this assessment until the other order, invited by the defendant, was complied with.
The judgment is affirmed, each party to pay its own costs on appeal.
Griffin, J., and Marks, J., concurred.
Plaintiff and appellant’s petition for a hearing by the Supreme Court was denied March 18, 1948. Carter, J., and Schauer, J., voted for a hearing.