120 Cal. 94 | Cal. | 1898
The defendant, Bear Valley Irrigation Company, was incorporated under the laws of this state for the purpose of engaging in very many kinds of business. Among other of its undertakings was that of constructing a canal or aqueduct,
1. Appellants challenge the sufficiency of the evidence to justify findings 5, 10, 13, and 15, which are to the effect, briefly stated, that divisions 1 and 2 of the “Santa Ana Canal” form a complete structure within the meaning of section 1183 of the Code of Civil Procedure, and do not and never did form a part of an entire and continuous line or system of canals, and that the said canal does not extend beyond the head of the Alessandro pipe line.
As I understand the position of appellants, it is that the lien
The defendant company owned what is known as Bear Valley reservoir for the storage of water, several miles above the “head works.” Bear creek empties into Santa Ana river about four miles above the head of the canal. Water is taken directfy from Santa Ana river into the canal, and at some seasons of the year part of the water comes from this storage reservoir. The company also takes water from Santa Ana river for ditches and flumes other than and wholly independent of the canal,
Division 3 was never completed. Mr. Hall testified: “It has never been a completed canal. It has never been in condition to be used as a canal. It has nevér been graded for its entire length. The reason why it was not graded was that the company did not have the right of way; at places there are flumes yet to be built; from half a dozen to eight pieces of flume to be built, aggregating between three and four thousand feet. There were tunnels yet to be constructed—at least six—I don’t remember the exact number.” On cross-examination he said: “One place that I know of my own knowledge where the company did not have a right of way was through a tract owned by a man named McIntosh, and the distance was nearly three-quarters
Importance is attached to the fact that the contracts were entire for the whole work and plaintiffs had not fully performed; and, besides, there was nothing to show an abandonment of or interruption in the work; the complaint failed to allege that performance had been prevented by McLaughlin or either of the defendants, or that the contract had been rescinded. Here, then, the structure contemplated was a completed roadbed ready for the rails, extending from San Jose to Stockton. . Under the facts shown, the lien could not attach to a portion of the road, and the court said: “It would render the statute absurd to hold that one contractor or subcontractor could acquire a lien upon a bridge, another 'upon a tunnel, and a third upon a culvert, all of which constitute portions of a railroad.” The contention of appellants would require a lien for erecting a depot building to
Here, however, the Bear Valley reservoir had been in use long before the Santa Ana canal was projected, and so also had the Alessandro pipe line. The division 3 of the projected canal was graded in disconnected parts, but there remained yet to be obtained rights of way without which completion was impossible, and finally work on this division was abandoned and the whole property passed into the hands of receivers, and no work has been done on this division since September, 1893, so far as we know. We find no case among those cited by appellants parallel in its facts with the case before us, and no principle upon which their view of the matter can be upheld.
Respondents claim that the wisdom of the decision of South Fork Canal Co. v. Gordon, supra, has been questioned and was practically disapproved in Brooks v. Railway Co., supra. The opinion in this latter case was written by Mr. Justice Miller (one of the dissenting Justices in the former case), but I am unable to discover that any doubt whatever is cast upon the earlier case.
We cannot perceive upon what principle the lien should be made compulsory as to division 3, or why it should be lost entirely because not claimed on the pipe line. Division 3 is not only incomplete, but there remain rights of way to be obtained without which the surveyed line and the work done have no value or utility. Bo one can say that it ever will be completed, and if so completed it yet remains to complete division 4 to make division 3 of value. The pleadings and liens would justify our holding that this division might be included, but we see no reason for compelling plaintiff to so extend its claim; nor do we see any legal ground upon which to do so.
2. Appellants allege error in the refusal of the court to allow their proposed amendment to their answer. It was objected to at the time it was offered because the material amendment related to matters about which there was up to that stage of the trial no evidence, and because it presented a new issue; it was as to the existence of an entire system of which the canal formed a part. But the court subsequently let in all the evidence of appellants on that issue, and it has had consideration here; we cannot, therefore, see that they were injured by the ruling.
We are unable to discover any error in the judgment or order, and therefore advise that they be affirmed.
Haynes, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Harrison, J., Garoutte, J., Van Fleet, J.