135 P. 48 | Cal. Ct. App. | 1913
This appeal is from the order of the trial court, granting the motion of defendants to change the place of trial from Yolo County to Lake County. The grounds of the motion are that all of the defendants at the commencement of the action were and now are residents of the county of Lake and the "action is for the determination of a right or interest in and to real property situated in the county of Lake, state of California, and for an injury to real property, and to prevent an alleged trespass upon real property situated in the said county of Lake."
It appears from the complaint in the action that the plaintiff is a corporation whose principal place of business is Woodland, Yolo County, and was organized for the purpose of acquiring, selling, and delivering water and water-rights for irrigation and other purposes and to construct canals, ditches, dams, flumes, and other means of diverting water for said purposes; that Cache Creek takes its rise in Clear Lake "and flows in a southeasterly direction through the county of Yolo from which a large acreage of said county is irrigated and supplied with water by plaintiff "; that "plaintiff is the owner of certain lands, canals and ditches, together with the dams, bulkheads, abutments, levees, headgates, wiers and other improvements, connected therewith and necessary thereto; said ditches being generally known and designated as the 'Woodland or Moore Ditch,' and the 'Adams Ditch,' and the 'Capay Ditch,' " through which "said ditches and canals . . . plaintiff now is and for many years last past, has been serving and supplying the farming neighborhoods under said ditches and canals with water for irrigation purposes, for hire and consideration" and that said works have cost large sums of money and "are worth the sum of $700,000 and more"; that the said creek where it passes through plaintiff's said land at its head, "has been filled and built up by natural accretion, and by the growth of shrubs, weeds and other vegetation and by natural deposits of silt, earth and other material," which condition operates as a barrier to the rapid flow of water through said *495 creek bed and prevents said waters in seasons of heavy rains "from flowing down said creek bed in large and dangerous quantities" and also causes the waters to be retained in said lake and retards the flow of water stored during the winter season and causes the same to flow down said creek during the summer months and at a later period of time than it would otherwise flow; that the demand for water for irrigation in the winter season is small, but in the summer season is great "and insufficient to supply such demand" and plaintiff is entitled to have said creek where it passes through said land at its head "remain in its" natural state and condition." It is then alleged that defendants, in September, 1911, "entered upon said lands of plaintiff adjacent to said lake and through which said lake flows upon land adjacent thereto, and have entered upon and into the bed of said creek flowing thereon, and have excavated soil, cut timber, brush and other growth and vegetation from a portion thereof, and removed the same therefrom, thereby removing the barrier and impediment to the flow of said waters, as above described" and "threaten to and will, unless restrained . . . continue to enter upon the said land and the bed of said creek" and by said acts cause large and excessive quantities of water to flow "down the bed of said Cache Creek, and in such quantities, and with such force as to overflow the lands, dams, embankments, abutments and wiers of said plaintiff and through the said ditches and canals of said plaintiff, greatly damaging, washing away and injuring the same, and carry down and deposit thereon great quantities of rock, earth and rubbish, and breaking said plaintiff's ditches and depriving it of the use and profit of the operation thereof, and the sale of water therefrom," to plaintiff's irreparable injury and damage.
It appears very clearly that the property interests of plaintiff, situated in Yolo County, affected injuriously by the alleged conduct of defendants, are in their nature real property. It is also apparent that plaintiff's property situated in Lake County injuriously affected by the acts of defendants is real property. What may be the ultimate outcome of the action at its trial does not concern us. For the purpose of the motion the averments of the complaint must be taken as true. The sole question is — Have defendants the right to compel the trial to take place in Lake County, or, otherwise *496 stated, was the action properly commenced in Yolo County and is plaintiff entitled to have it tried there?
As it is conceded that the action is for a trespass upon and injury to real property, the case comes within the provisions of subdivision I of section
"Actions for the following causes must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial as provided in this code:
"1. . . . For injuries to real property. . . .
"Where the real property (injured) is situated partly in one county and partly in another, the plaintiff may select either of the counties, and the county so selected is the proper county for the trial of such action."
In Lower Kings River W. D. Co. v. Kings River Fresno CanalCo.,
The court held that plaintiff's ditch was an artificial watercourse and that the right to have the water flow in the river to the head of its ditch is an incorporeal hereditament, appertaining *497 to its watercourse and that "if the watercourse, consisting of the bed, banks of the trench and of the water therein, be real property, the right to have the water flow to it is incidental and appurtenant thereto." We can perceive no essential difference between that case and the present one except that here the specific acts complained of were committed on plaintiff's land in Lake County, while in the case cited the specific act consisted of diverting the water from the river above the mouth of plaintiff's ditch and apparently not on plaintiff's land. We cannot see that had defendant made its diversion on plaintiff's land it would have changed the remedy or have affected the right of plaintiff to bring its action in either county, for the injury extended to both counties. So here, the injury was in both counties, the greater being in Yolo County. The resultant effects of the acts complained of were almost wholly in Yolo County.
In the case of Drinkhouse v. Spring Valley Water Co.,
In the case of Last Chance Water Ditch Co. v. Emigrant DitchCo.,
So far as the question before us is concerned, the character of the injury, i. e., the particular acts resorted to by defendants which resulted in the injury, is immaterial. It is shown that these acts will inevitably cause the injury complained of to the real property of plaintiff situated in Yolo County and it had the right to bring its action in that county.
Respondents cite the case of Grocers', etc., Co. v. Kern L.C. Co.,
Respondents argue: "So in the case at bar, the 'real cause of action,' the invasion of plaintiff's right complained of, is the trespass and threatened continuance of trespass upon real property. All other averments are incidental and refer only to damages resulting from and incidental to the primary wrong," which they contend consisted of the trespass committed in Lake County. Respondents overlook the fact that *499
the chief injury was to real property situated in Yolo County and this injury would be the same if the land on which defendants did the acts complained of had been government or state land. There was injury to the land situated in Lake County as is contended by respondents and as is alleged in the complaint, but there was also injury resulting directly from defendants' acts to real property belonging to plaintiff situated in Yolo County, and this, under section
Respondents thus sum up their contention: "We deprived plaintiffs of no water, diverted no water, and committed no act which has interfered with plaintiff's right other than to trespass upon his (its) land and do the acts complained of. It is true that its alleged consequences may flow from threatened consummation or continuance of this act to a ditch, part of which is in Yolo County. But the action is to restrain the commission of the act of trespass, and this done, it follows that the consequences feared cannot ensue." It is true that the relief prayed for might be given by the court in Lake County, so also may relief be given by the court in Yolo County, but the question is not thus answered, for the statute gives the right to plaintiff to bring its action in either county where the injury alleged is to real property in both counties. Respondents mistake the gravamen of the complaint. The injury is directly charged to be to real property situated in Yolo County and that it results as a consequence from the trespass committed in Lake County is immaterial.
The order is reversed.
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 September 27, 1913. *500