109 P. 896 | Cal. Ct. App. | 1910
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *406
We invited further consideration of two questions — first, Does the complaint state sufficient facts upon the issue of the necessity for the taking? and, second, Does the statute authorize the taking of water for electric power, light and heat purposes?
In addition to what is said in the former opinion, it may not be amiss to make some further observations upon these two questions.
First, as to the question of necessity. Section 1241, Code of Civil Procedure, provides, as we have seen, that — "Before any property can be taken, it must appear: 1. That the use to which it is to be applied is authorized by law; 2. That the taking is necessary to such use." The point urged is that the complaint does not allege facts sufficient to present the issue of necessity; that the averments do not meet the requirements of the law without showing: 1. That the wants and needs of the people require the production and supply of electricity in excess of the present supply; 2. That the present equipment controlled by appellant is insufficient to meet such needs; 3. That the particular property sought is available and can be and will be used for the public purposes mentioned and that it is necessary to take the property to meet the public needs.
It is alleged that a large number of people are without electricity whose needs in that regard appellant alleges its desire and purpose to supply, and to this end that it is necessary to condemn the property sought. Electric light and power companies, like other public service corporations, have a right and it is their duty to anticipate future needs of the public. They cannot reasonably be required to limit their preparations for future demands by their ability to provide *408
for them out of their present supply. New uses for electricity are constantly being discovered and applied. The supply which in the same community would at present be sufficient might be insufficient in a short time. Nor can public service corporations state with certainty to what extent their facilities to serve the public will be availed of. Neither can they determine, nor should they be required to determine in advance, and set forth in their complaint that their present equipment is insufficient to meet the needs of the people. It is, of course, required that the particular property sought be available and can be used for the purposes desired and also that it is necessary to meet the public needs. But these are matters the particular facts in support of which are evidentiary rather than subjects of pleading. In Spring ValleyW. W. v. Drinkhouse,
The more serious question urged is, Does the statute authorize the condemnation of property by electric power, light and heat companies, under any condition of facts? Respondent denies to such corporations such power. The claim is that while they may condemn property for "canals, reservoirs, dams, ditches, flumes, aqueducts and pipes and outlets, for storing and discharging water for the operation of machinery for the purpose of generating and transmitting electricity for the supply of mines (and for many other specified purposes) with electric power," as set forth in subdivisions 12 and 13, section 1238, Code of Civil Procedure, they cannot condemn water, without which the canals, reservoirs, etc., would be useless, but must acquire the water by appropriation *409 or purchase; that they may condemn the means whereby water may be used but not the water itself. This denial, of course, extends to all persons or corporations, municipal or otherwise, to acquire water in any other method than by appropriation or purchase for such purposes, however imperative the need of the public. In our former opinion we endeavored to show that water is property and may be taken like other property. It is conceded now that water is property and may be taken for purposes authorized by law, but the claim is that it is not so authorized in terms or by implication in subdivisions 12 and 13 above referred to; that in neither one of these subdivisions is water expressly mentioned "for power purposes or for generating electricity as one of the uses of the power company for which condemnation may be made."
Section 1238 provides that, "subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following uses." Then follows an enumeration of the uses, among them the uses mentioned in subdivisions 12 and 13. The property which may be taken is classified and enumerated in section 1240, and, as we have held, includes water and riparian rights to water. Section 1238 declares: "The right of eminent domain may be exercised in behalf of the following uses," and among them are canals, reservoirs, etc., "from sources other than a navigable lake," for "supplying, storing and discharging water for or in connection with the operation of machinery, for the purposes of generating and transmitting electricity," etc. If water may be taken and canals, reservoirs, etc., may be taken for supplying, storing and discharging water, it seems to us that water may be taken to be used in canals, ditches, pipes, etc., or stored in reservoirs for the uses enumerated. The limitation upon the taking of water is found in section 1238 and the taking must be for one of the uses authorized by that section; and if water is sought under eminent domain the power may "be exercised inbehalf of the" uses enumerated. When the statute says that land may be condemned (section 1240), the right to take it for canals, reservoirs, etc., i. e., "in behalf of the following uses," is found in section 1238 Water is as necessary for the uses and purposes mentioned in subdivisions 12 and 13 as is land. And land is therein *410 mentioned only in connection with the site on which to erect the machinery to generate electricity. When the statute declares canals, reservoirs, etc., to be public uses, it does not mean completed or already constructed canals, reservoirs, flumes, pipes, etc.; it means the right to take land to be used for the purpose of constructing these agencies or instrumentalities "for supplying, storing and discharging water" for the purposes named. Respondents' contention, carried to its logical conclusion, would deprive the corporation of the right to condemn land for canals, reservoirs, ditches, etc., because land is not expressly mentioned, and would confine the right to condemn only completed canals, reservoirs, etc. Obviously this cannot be the true construction to be given the statute. Yet water is as essential to the use of canals, reservoirs, etc., as is land; each is useless without the other. Reading sections 1238 and 1240 together, they mean to say this: "Water may be taken by the right of eminent domain in behalf of the following public uses, namely, canals, reservoirs, etc., in connection with the operation of machinery, for the purpose of generating and transmitting electricity."
The case is quite supposable where certain land is susceptible of being utilized as a reservoir, and may be indispensable to the success of plans for furnishing power with which to generate electricity for the purposes mentioned in the statute. The owner of this land may have it in a high state of cultivation under irrigation from a stream of water flowing through it which he has appropriated for such use. To convert this land into a reservoir must necessarily deprive the owner of both land and water and in assessing the damage, in taking the land, the damage would be enhanced by the water appropriated with it. In such case the water is appurtenant to the land and would be taken with it. The statute gives the right to take the land for a reservoir and this right would not be affected because it also involved the taking of water with it.
Somewhat similar provision is made by subdivision 3 of section 1238, for the exercise of eminent domain "in behalf of . . . ponds, lakes, canals, aqueducts, reservoirs . . . for conducting or storing water for the use of the inhabitants of any county, incorporated city, or city and county, village or town." Respondents' contention would prohibit the taking *411 of water "in behalf of" these objects, which it seems to us would be no less violative of the intention of the statute than that sought to be given subdivisions 12 and 13.
In St. Helena Water Co. v. Forbes,
In Pasadena v. Stimson,
The judgment is reversed, with directions to overrule the demurrer.
Burnett, J., and Hart, J., concurred.
The following is the opinion of the district court of appeal, rendered on the 17th of December, 1909, which is approved in the foregoing opinion on rehearing:
Addendum
This is an action to condemn certain riparian rights. A general and special demurrer to the third amended complaint was interposed by certain defendants and sustained by the court without leave to amend. Plaintiff appeals from the judgment. There are twenty-five separate causes of action involving the rights of as many different and separate riparian owners. Three appeared and had judgment, who will hereinafter be referred to as defendants. Each separate cause of action is couched in substantially the same language and the attack upon one may be treated as an attack upon the other two.
From the complaint it appears that plaintiff was incorporated under the laws of this state in January, 1907, "for the term and duration of fifty years from the date of its incorporation, and is now in charge of the public use hereinafter *413 mentioned, for which the property hereinafter described is sought to be taken." Defendants contend that the complaint fails to state facts showing that the use is a public use or that plaintiff is in charge of a public use or that the taking of the property is necessary to such use; also, that the allegation of the complaint that plaintiff is the owner of the property sought to be condemned is fatal to the pleading. The special demurrer is upon the grounds of uncertainty and ambiguity, in this, that the complaint "does not distinctly state the use or purpose to which plaintiff . . . seeks to apply the property," or "describe with sufficient certainty the property"; and does not "state the or any reasons or facts showing the necessity for taking the property." Furthermore, that it appears from the complaint that plaintiff owns five thousand inches of the waters of said Old Cow creek, but it "does not definitely appear that there is any other or greater amount of water in said stream to be condemned," or "what amount or right, if any, to said stream the defendants hold or own which the plaintiff seeks to condemn." It becomes necessary to present somewhat fully the averments of the complaint:
"The said Old Cow creek flows and runs over five thousand inches of water, and said plaintiff is, as aforesaid, the owner of five thousand inches of water running and flowing therein, by virtue of appropriation as aforesaid, and entitled to take, divert and use the same as against the said defendants, and as against all the world except as to riparian rights of said defendants therein, which said riparian rights are, as herein set forth, sought to be condemned in this action.
"Martha A. Sheridan is the owner and is in possession of a certain tract of land situated in said county of Shasta, over, along and upon which said waters of said Old Cow creek flow and which is wholly below the point of diversion and between said point and the junction of said Old Cow creek and said South Cow creek as above described, which tract of land is particularly described as follows, to wit: The east half of the southeast quarter of section 6, township 32 north, range 1 east, M. D. M., together with the riparian rights connected therewith and appurtenant thereto, in and to the waters of said Old Cow creek, . . . (particularly describing the nature of said riparian rights).
"That not exceeding two acres of the said lands above described are capable of being irrigated and the total amount of water required to irrigate such land does not exceed one-half of one miners' inch, measured under a four-inch pressure, as aforesaid.
"That a large number of the inhabitants of said county of Shasta, and of the public generally in said county of Shasta, and elsewhere in the state of California, are without electricity or electric current for such purposes of light, power and heat or for any other purpose, and it is necessary that plaintiff should take said waters and said riparian rights for the purpose of supplying said use.
We think the purpose for which the property is sought to be condemned appears with sufficient certainty. The land of defendants is definitely described by legal subdivisions and it is alleged that the waters of Old Cow creek flow "over, along and upon" said land, "which is wholly below the point of diversion and between said point and the junction of said Old Cow creek and said South Cow creek as above described." The complaint also alleges that it is necessary that plaintiff appropriate, take and use "all riparian rights of defendants to and connected with said tract of land hereinbefore described in and to said waters of said Old Cow creek." The prayer is for the condemnation of the riparian rights of defendants. The complaint also sets forth specifically the nature and character of the riparian rights connected with said land. This we think sufficient to show with reasonable certainty the property sought to be condemned.
The point made that the facts should be stated showing the necessity for taking the property was made in Rialto Irr.District v. Brandon,
It is stated in the complaint that there is water flowing down Old Cow creek in addition to the five thousand inches appropriated and owned by plaintiff. The precise quantity flowing through defendants' land is not stated and need not be. It does appear that more water passes down the creek than has been appropriated by plaintiff, and that the various defendants have certain riparian rights to all of it, and plaintiff avers a necessity for taking all the water of the creek, including that to which the defendants are entitled as riparian owners. Plaintiff was not called upon to make an apportionment in its complaint of those riparian rights among their several owners. Whatever those rights may be, plaintiff seeks to condemn all of them, and it will be for the court or a jury to fix the compensation to be paid to each owner as the facts may warrant. *418
The case of Shasta Power Co. v. Walker, 149 Fed. 568, was an action to condemn lands. In many of its features the case was not unlike the one here — the purpose of plaintiff being the same as here and stated in much the same form of pleading. The question whether the use was a public use came up on demurrer. The court said: "Taking the allegations of the complaint as a whole into consideration, and being mindful that the plaintiff has acquired franchises from the city of Redding and the county of Shasta for the purpose of serving the inhabitants of both such municipalities with light, heat and power, I am of the opinion that the plaintiff is shown to be a public service corporation, and hence that the complaint is within itself sufficient. The objection that the contemplated use is vague, indefinite and uncertain cannot be maintained." The case was later tried on its merits and plaintiff had judgment, and is reported in 160 Fed. 858, 87 C. C. A. 660. In the discussion of what is necessary to constitute a public use and speaking with reference to subdivision 12 of section 1238, Code of Civil Procedure, supra, the court said:
"There can be no doubt that within this provision the furnishing of electricity as it is proposed to be furnished by the defendant in error is a use for which the legislature intended that the right of eminent domain might be exercised. The purpose of the statute is to remove obstacles in the way of development and progress in the state, and it is in harmony with the constitution and section
"And it has generally been held by the courts that the generation of electric power for distribution and sale to the public on equal terms is a public enterprise, and that water used for that purpose is devoted to a public use." (Citing cases.) *419
It is no longer a disputed proposition that the state through its legislature, in the exercise of its police power, may regulate the rate to be charged by corporations doing a business affected with a public interest. Says Mr. Thompson: "Property is clothed with a public interest within the meaning of this rule when it is used in a manner to make it of public consequence, and its use affects the community at large." (3 Thompson on Corporations, sec. 2950.)
In support of the general demurrer it is urged that plaintiff has stated itself out of court by averring ownership of the property sought to be condemned; citing City of San Jose v.Freyschlag,
We think the complaint states facts sufficient to show that the use is a public use and that plaintiff is in charge of a public use. It is true, as claimed by defendants, that the complaint must show that the use for which the property is to be taken is a public use so declared to be by the legislature. It is also true that the courts will not condemn property for a use "which is evidently private or to accomplish some purpose which is not of a public character."
The right of the people or government to take private property for public use is given by section 1237, Code of Civil Procedure, and may be exercised in the manner provided in the subsequent sections — part 3, title VII, of the same code. Section 1238 sets forth the public uses in behalf of which this right may be exercised, "subject to the provisions of this title." Among those public uses are found in subdivisions 12 and 13 the following:
"12. Canals, reservoirs, dams, ditches, flumes, aqueducts and pipes and outlets natural or otherwise for supplying, storing and discharging water for the operation of machinery for *420 the purpose of generating and transmitting electricity for the supply of mines, quarries, railroads, tramways, mills, and factories with electric power; and also for the applying of electricity to light or heat mines, quarries, mills, factories, incorporated cities and counties, villages or towns; and also for furnishing electricity for lighting, heating or power purposes to individuals or corporations, together with lands, buildings and all other improvements in or upon which to erect, install, place, or use or operate machinery for the purpose of generating and transmitting electricity for any of the purposes or uses above set forth.
"13. Electric-power lines, electric-heat lines; and electric light, heat and power lines."
Section 1239 divides the estates and rights in lands subject to be taken for public use into three classes: 1. A fee simple when taken for certain purposes not here involved. "2. An easement, when taken for any other purpose." 3. The right to occupy land to remove therefrom such earth, etc., as may be necessary for some public purpose.
Section 1240 classifies and enumerates the private property which may be taken under this title: "1. All real property belonging to any person. . . . 6. All classes of private property not enumerated may be taken for public use when authorized by law." And section 1241 provides that "Before any property can be taken, it must appear: 1. That the use to which it is to be applied is authorized by law; 2. That the taking is necessary to such use."
The act of March 22, 1905, [Stats. 1905, p. 777], provides for the sale of franchises by counties and municipalities, among others, "to erect poles or wires for transmitting electric heat and power over or upon any public street or highway," and provides for the payment of two per cent of the gross annual receipts for the enjoyment of such franchise. Section 629 et seq. of the Civil Code are regulatory, to some extent, of corporations engaged in supplying electricity. The statute relating to eminent domain, however, seems to clearly recognize the object in which plaintiff is engaged and for which it was incorporated as a public use.
The proposition principally discussed and upon which defendants mainly rely is as follows: "The statute does not authorize the condemnation of water or riparian rights for *421
creating power, for generating electricity, for power lines, heat lines, or electric heat, light or power." The contention is that section 1240, Code of Civil Procedure, "fails to provide expressly for the condemnation of water or the riparian right of the land owners to the flow of water over their lands, thereby leaving a doubt as to the intention of the legislature as to what property should be condemned," and there being a doubt it must be resolved against the right to condemn. Attention is invited to subdivision 7 of section 1240 as showing that the "classes of property not enumerated" may be taken only "when such taking is authorized by law." But this latter clause adds nothing to the statute, for section 1241 provides that "before property can be taken, it must appear that the use to which it is to be applied is a use authorized by law." This condition applies to all the classes of property enumerated in section 1240 The question, then, is, Is water or the riparian right to water property and does it come within any of the classes enumerated as the subject of condemnation? The word "property" includes property real and personal. (Civ. Code, sec.
The supreme court said, in Hill v. Newman,
Mr. Lewis says: "Land and all estates, rights, interests and easements in, or appurtenant thereto, may be taken under the power of eminent domain. There may be a question whether the taking of a particular property, right or easement has been authorized, but if the intention of the legislature is clear, its power is beyond question. The right of a corporation to maintain one or more bridges across a street may be condemned. The rights of riparian and abutting owners may be condemned without taking any estate in the land to which they pertain." (1 Lewis on Eminent Domain, sec. 262a.) The same author says: "All kinds of property, and every variety and degree of interest in property, may be taken under the power of eminent domain." (Lewis on Eminent Domain, sec. 262.) We cannot doubt that the legislature meant, by subdivision 7, section 1240, to include every class of private property not specifically enumerated and that the language is not to be interpreted as excluding water and riparian rights simply because they are not distinctly mentioned. Defendants would have the court ingraft upon the statute an exception so that it would read, "all classes of private property not enumerated except water andriparian rights may be taken for public use." This the court cannot do. There is no element of sacredness peculiar to water that should exempt it from bearing the burden placed upon other property when necessary to be taken for the public good.
In the case of St. Helena Water Co. v. Forbes,
The court, in Alta Land etc. Co. v. Hancock,
In Lux v. Haggin,
City of Santa Cruz v. Enright,
Hercules Water Co. v. Fernandez,
Subdivision 6, section 1240, of our Code of Civil Procedure, is the same as subdivision 6 of section 5958, Revised Codes of North Dakota. In the case of Bigelow v. Draper,
It seems to us that the right to condemn water and the riparian rights thereto, as a public use, is too well grounded in this state, under the law as it now exists, to justify us in setting it aside upon some new view that may now be urged. *426
The judgment is reversed, with directions to overrule the demurrer.
Hart, J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 13, 1910.