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longed exclusively to them, and that they land, the vegetation growing thereon which were entitled to damages in any sum from was at all capable of utilization was, even plaintiffs for taking and using it, is without for the purposes of pasturage, of comparaany foundation in fact. The authorities cit tively little value, and that the consequence ed by counsel are where no finding whatever of gathering it, if, indeed it was in such was made upon a certain material issue rais condition as to have rendered it practicable ed by the pleadings, or even an attempt to to reap it, considering the cost and labor remake one.

quired to do so, would have been loss rather The grounds upon which the motion for a

than profit. The evidence indisputably esnew trial was based and urged here upon ap tablishes the fact that the plaintiffs, who are peal from the order practically call only for a

experienced farmers, and who, from having discussion of the questions presented on the

been engaged in the business of farming for appeal from the judgment, and which we have

many years in the section of the state where considered. Counsel insist that the court

the leased lands are situated, must be thorerred in refusing to grant the motions of

oughly familiar with the methods and redefendants to dismiss the action and for judg

quirements of successful farming in that localment on the pleadings, and also in denying

ity, unremittingly strove to cultivate and their motion for a nonsuit; but the questions

grow crops upon the property, as they agreed arising thereon, as suggested, have been dis

to do, by the covenants of the lease. There posed of in the discussion of the points urged

was no sane reason why they should not on the appeal from the judgment. The plaintiffs were, we think, entitled to have done so. They had equal concern with

the defendants in the success of the venture, the use of the pasturage and feed growing

for their failure because of negligence or for upon the land. There is no provision in the

any other reason within their control to make lease reserving to the lessors the right to the pasturage, and unless such right was with

the business prosperous and profitable could held from plaintiffs, who were tenants for

not result otherwise, quite naturally, than to

militate against their own welfare as well as years, by the terms or some covenant of the lease, the plaintiffs were acting within their

against that of the defendants. rights when they grazed their stock upon the

We have carefully consulted all the auland. Section 819, Civ. Code; Marshall v.

thorities cited by counsel for appellants as Luiz, 115 Cal. 625, 47 Pac. 597. Of course,

sustaining their several contentions, and readit should be unnecessary to say that, if the

ily concede that they contain declarations lessees had succeeded in growing upon the

of sound law, but are unable to perceive land a crop of hay, or of barley or of wheat,

their apposition to the facts presented in the worth harvesting, in point of quantity and case at bar. We can find no reason for disquality, they would not have been justified

turbing the judgment or the order. in entirely appropriating the same for the

For the reasons stated in the foregoing pasturing of their stock or otherwise, without discussion, the judgment and order appealed accounting to the defendants for their share

from are affirmed. thereof. But we feel convinced from the testimony adduced at the trial that, after the We concur: CHIPMAN, P. J.; BURdisappearance of the flood waters from the NETT, J.

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(5 Cal. App. 638)


In mandamus by a judgment creditor of an CO v. BOARD OF SUP’RS OF KERN

irrigation district to compel the supervisors to COUNTY et al. (Civ. 312.)

make an assessment and lery under Laws 1897,

p. 267, c. 189, 8 39. a judgment awarding the (Court of Appeal, Third District, California. May 28, 1907. Rehearing Denied by Su

writ was not erroneous because it made no pro

vision for other creditors. preme Court July 27, 1907.)

Appeal from Superior Court, Kern County; 1. MANDAMUS — PETITION – SUFFICIENCY

Paul W. Bennett, Judge.

Mandamus by the Nevada National Bank of Laws 1897, p. 267. c. 189, § 39, provides | San Francisco to compel the board of superthat, in case the board of directors of an irriga

risors of Kern county to levy and collect a tion district refuse to make an assessment to pay interest on bonds or bonds maturing, the

tax for the payment of a judgment in favor board of supervisors of the county in which the of petitioner against the Poso irrigation disoffice of the board of directors is situated shall trict. From a decree awarding the writ, cause an assessment to be made, etc. FIeid that where, in mandamus to compel supervisors

respondents therein appeal. Affirmed. to make an assessment, it appeared that all the J. W. P. Laird, C. L. Claflin, II. L. Packard, land of the district was situated in one county, the petition was not insufficient because it fail

and G. W. Zartman, for appellants. H. V. ed to state that the office of the board of direct

Kimberlin and G. H. Smith, amicus curiæ. ors was situated in the county where the pro Heller & Powers, for respondent. ceedings were brought. 2. WATERS AND WATER COURSES—IBRIGATION BURNETT, J. The judgment or decree DISTRICTS-BONDS-ASSESSMENTS-LEVY.

from which the appeal has been taken is as Laws 1897, p. 267, c. 189, provides that the

follow's: "The alternative writ of mandate isboard of directors of an irrigation district shall levy an assessment sufficient to raise annual in sued in this action having been served on deterest on bonds, and in any year in which the fendants, and the said defendants baving apbonds shall fall due must increase the assess

peared and answered the verified petition of ment to an amount sufficient to pay the principal, and, in case of the neglect or refusal of the

plaintiff, and the issues thereby joined having board of directors to cause such assessment and been brought for trial before this court sitting levies to be made, the assessment shall be made without a jury this 13th day of February, by the county supervisors of the county in which

1905, Messrs. Heller & Powers appearing as the office of the board of directors is situated "in like manner and with like effect as if the

attorneys for plaintiff and J. W. P. Laird, same had been made by the board of directors, Esq., appearing as attorney for defendants, and all expenses incident thereto shall be borne and documentary and oral evidence having by the district.” IIeld, that expenses of a levy were properly included in the levy made by the

been introduced, and the matter having been supervisors.

argued and submitted, this court finds that all 3. MANDAMUS — WATERS – IRRIGATION Dis

of the allegations set forth in plaintiff's petiTRICTS – BONDS – ASSESSMENT — COMPEL tion or complaint are true; and that the Poso LING LEVY.

irrigation district is a municipal corporation Mandamus was properly awarded to compel supervisors to make an assessment and levy

organized under the laws of the state of Caliunder the statute, though petitioner's demand

fornia, and is wholly situated in the county was represented by a judgment against the dis of Kern, state of California; and that the trict rendered in an action on the district's

superior court of the county of Kern, state of bonds.

California, in the action therein pending, 4. WATERS AND WATER COURSES-IRRIGATION wherein the above-named plaintiff was plain


tiff, and the said Poso irrigation district was Section 39, providing for an assessment and defendant, duly gave, made, and entered a levy by the board of supervisors, is not viola judgment, requiring said Poso irrigation distive of Const. art. 11, $ 12, declaring that the Legislature shall have no power to impose taxes

trict to pay the said plaintiff the sum of $12, upon counties or public or municipal corpora

202.96, together with interest thereon, at the tions, but may by general laws vest in the "cor rate of seven (7) per cent. per annum, from porate authorities" thereof the power to assess the 26th day of August, 1902, and for other and collect taxes.

purposes; and that said Poso irrigation dis5. SAME.

trict has no funds to be applied to the payLaws 1897, p. 267, c. 189, $ 39, provides that the board of directors of an irrigation dis

ment of said judgment; and that there is no trict shall levy an assessment sufficient to raise

property belonging to said Poso irrigation the annual interest on outstanding bonds, and district upon which execution could be levied ; in any year in which any bonds shall fall due

and that the officers of said irrigation district must increase the assessment to an amount suf

have refused and neglected to levy an assessficient to raise a sum sufficient to pay the principal of the bonds as they mature; and provides ment or do or perform any of the acts providthat, in case of the neglect of the directors so ed by law, to assess the real property in said to do, an assessment and levy shall be made by

district, for the purpose of puying the money the board of supervisors of the county in which the office of the directors of the district is situ

due on said judgment; and that the defendated. II eld, that it is not necessary that the di ant, board of supervisors, after petition to rectors or supervisors make several assessments do so to it, has also refused to take the necesfor each year, but the board of supervisors nay makr one levy and assessment for the payment

sury steps to levy an assessment on the proj)of the aggregate a lount of the installments of

erty of said district. or to cause any levy of interest and principal due in successive years. any assessment to be made on the property in

said distric-, or to take any steps for the to cause such assessments and levies to be purpose of assessing said district, and collect made as in this act provided, then the assessing the taxes on the property in said district, ment of property made by the county assessor in order to pay said judgment; and that and the state board of equalization shall be plaintiff is a party beneficially interested and adopted, and shall be the basis of assesshas no mears of collecting its judgment with ment for the district, and the board of superout the action of said defendant; and that visors of the county in which the office of the said plaintiff has no plain, speedy, adequate, board of directors is situated shall cause an or other remedy in the ordinary course of law. assessment roll for said district to be preNow, there ore, it is hereby ordered, ad pared, and shall make the levy required by judged, and decreed that said defendants im this act, in the same manner and with like mediately proceed to levy an assessment in ac effect as if the same had been made by said cordance with law upon the real property board of directors, and all expenses incident within the boundaries of said Poso irrigation thereto shall be borne by such district. In district which is subject to an assessment of case of the neglect or refusal of the collector said district sufficient to pay said judgment or treasurer of the distriit to perform the of plaintiff, to wit, the sum of $12.202.96, to duties imposed by law, then the tax collector gether with the interest thereon at the rate and treasurer of the county in which the office of seven (7) per cent. per annum from the of the board of directors is situated must, 26th day of August, 1902, and also all ex respectively, perform such duties, and shall penses incident to the making of said levy be arcountable therefor upon their official and assessment and incident to the collection bonds as in other cases." of said assessment, which expenses shall be The bonded indebtedness herein involved estimated by the said defendant, board of was incurred prior to the enactment of said supervisors, and shall be included within said | statute, but this circumstance is unimportant lery and shall also include plaintiff's costs in view of the fact that the act of 1889, in this action, which are hereby taxed at passed prior to the issuance of the said bonds $ - against said defendant, and which and amending the act of 1887, known as the shall be included within said levy, and when "Wright Irrigation Act." contains a provision sufficient money is collected the defendant identical, as far as the question before us is shall pay to plaintiff from the sum collected concerned, with said section 39 of the act of whatever announts are collected on said as 1897.. The judgment herein is vigorously assessments until said plaintiff shall be paid sailed by numerous counsel, including a learnthe said amounts hereinbefore referred to, ed “friend of the court," and we have examto wit, the sum of $12,262.96, together with in ined with care the points and cases to which terest therein at the rate of seven (7) rier our attention has been directeil, and we shall (ent. per annum from the 26th day of August, I proceed to state our views thereon in the 1902, and the costs of suit herein. And it order in which the various propositions are is further ordered, adjudged, and decreed advanced in the briefs. that a peremptory writ of mandate shall be The position of appellants, as stated by issued to said defendants commanding them counsel, is that the judgment must be set to forthwith do the acts herein ordered that aside, and the writ vacated, because: "(1) The they shall do, and that a return day be in petition upon which the writ is based is serted in said writ as on or before the 15th wholly insufficient to give the court jurisdicday of September, 1903. Paul W. Bennett, tion to issue the peremptory or any writ hereJudge of the Superior Court.”

in. (2) The court exceeded its authority and The action is based upon the provisions of jurisdiction in its direction to the board of section 39 of "An act to provide for the or supervisors by said writ: (a) In directing a ganization and government of irrigation dis levy and collection for plaintiff's costs extricts, approved March 31, 1897" (Laws 18:97, | pended in the present action. (b) In directp. 267, c. 189). which is in the following lan ing a levy for expenses to be incurred in such guage: "Sec. 39. The board of directors shall lery and collection. (c) In directing said then levy an assessment sufficient to raise the board to estimate such expense for the purannual interest on the outstanding bonds, and pose of levy and collection. (d) In directing in any year in which any bonds shall fall due said board to pay over to said plaintiff, when must increase said assessment to an amount collected, the amounts due it on its said judgsufficient to raise a sum sufficient to pay the ment. (3) The court exceeded its jurisdiction principal of the outstanding bonds as they in directing said board of supervisors to make mature. The secretary of the board must levy to pay said judgment. (1) That section compute and enter in a separate column of 39, upon which this proceeding is based, is the assessment book the respective sums, unconstitutional and void." in dollars and cents, to be paid as an assess In addition to the foregoing, the brief filed ment on the property therein enumerated. .by "amicus curia" presents specifically these When colleci ed, the assessment shall be paid considerations: "(1) upon the failure of the into the district treasury and be apportioned

board of directors or of the board of superto the several proper funds. In case of the visors, in any year, to levy an assessment for neglect or refusal of the board of directors ; the interest, or the iuterest and installments

of principal, falling due in that year, its closed, would divest the court of jurisdicpower ceases. In other words, the act does tion, in the absence of any allegation connot confer upon the directors or the board cerning them in the complaint, the burden is the power to make a general assessment for upon the defendants to present them, Since the aggregate of indebtedness accruing for the it does not affirmatively appear that by reaprevious years, or, as in this case, for a period son of the peculiar condition suggested the of 16 years. The power, if it exists, can only court did not have jurisdiction, by virtue be to make separate annual assessments for of its general authority, the presumption each year based on the values of that year; must be indulged against appellants' contenfor otherwise the obligations of the parties tion. But, again, it is manifest that the prowould be varied, and the act would be uncon vision was intended for a case where the stitutional. But this, from the nature of irrigation district comprised land in more things, is impracticable, at least after the than one county. Here it appears that it lapse of a year or two, and it is therefore is confined entirely to Kern county. There submitted that the provision of the amend seems to be no merit in this contention, and ment of 1839, conferring the power of assess we have probably devoted to it more attenment upon the board of supervisors, is, on tion than it deserves. this account, a mere brutum fulmen, and In the specification of particulars where practically void. (2) By the provisions of the in it is alleged the court exceeded its author. statute the taxes collected constitute a com ity in its direction to the board of supermon bond fund for the benefit of all the cred visors, exception is taken to that portion of itors, and all have a common interest in it. the decree providing for the costs of the

A suit, therefore, to dispose of this present action and expenses to be incurred fund, cannot be maintained without making in the levy and collection of the judgment. the others parties, or suing for their common It is insisted that said section 39 limits the benefit. Code Civ. Proc. 88 378, 379, 382, 389, power of the board of directors of the disand Meyer V. City of San Francisco (Cal. trict to the levy of an assessment sufficient Sup.) 88 Pac. 722. (3) If in this state the to raise the annual interest on the outstandequitable doctrine as to laches be held to ap- | ing bonds and in any year in which any ply to proceedings of the court generally bonds shall fall due to increase such assess(Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. ment to an amount sufficient to pay the 423), a very extreme case of laches is here same as they mature, and that the delegapresented.”

tion of authority to the board of supervisIn support of their first proposition, it ors cannot be more comprehensive than the is urged by appellants that the petition for authority conferred upon the board of dithe writ of mandate is fatally defective, in rectors in the first instance. The considerthat it does not appear therein that the of-ation of the costs of the present action may fice of the board of directors of the irriga be eliminated, as the record shows that no tion district is situated in Kern county, amount was awarded for costs. The exwhere the suit was brought. The contention penses of the levy and assessment would is based upon the language of said section seem to be a legitimate portion of the bur39 that "the board of supervisors of the den to be borne by the property owners in county in which the office of the board of whose behalf the bonded indebtedness was directors is situated shall cause an assess incurred. In fact, said section 39 makes ment,” etc. There was no corresponding provision for it in this language: "And all allegation nor finding in the case at bar, expenses incident thereto shall be borne by and it is claimed that this is jurisdictional. such district.” If we understand the posiAs far as the absence of any finding is con tion of appellants, it is that other provision cerued, no such issue was presented, and it is made for said expenses in case of the levy is hardly necessary to cite authorities to by the board of directors, and, since there is the point that the findings must be confined a delegation of power to the supervisors, to the issues made by the pleadings. But their authority is limited to the method appellants are wholly at fault in their claim pointed out for the directors to pursue. Of that the want of jurisdiction is disclosed course, the act contemplates that the board by the allegations of the petition. They of directors will do its duty, and ample prohave entirely mistaken the rule as applied vision is made in detail for incurring and to the jurisdiction of courts of record. The liquidating a bonded indebtedness.

But we presumptions here are in favor of jurisdic do not understand that in the technical sense tion, and not against it. There can be no the authority conferred upon said directors question that, under the authority with is sought to be delegated to the board of which superior courts are clothed by the supervisors. Rather is it true that the board Constitution, the superior court in and for of directors is empowered to bind the district Kern county, in the exercise of its general by taking certain steps, and the authority powers, had jurisdiction to entertain an ap of the said board to liquidate an indebtedplication for a writ of mandate against the ness must be exercised in the manner pointed supervisors of that county. If there were out. But in case of its refusal or neglect any exceptional circumstances which, if dis to act, then the board of supervisors is

granted directly by the Legislature the powo , provisions of the act, the portion of the deer to levy an assessment to provide not only cree complained of should be stricken out. for the payment of the amount due, but also There is no good reason, though, why this for the expense of said levy. The statute should necessitate a new trial. does not expressly provide that the expense We cannot see any merit in appellants' shall be included in said levy, but it is fairly contention stated by them as follows: "The implied, and any other construction seems petition to the board of supervisors as well unreasonable. The context clearly shows, as the writ prays that a levy to pay the we think, that in this way the expenses judgment therein set out be made by said “shall be borne by the district.”

board of supervisors in conformity with the The case of Boskowitz v. Thompson, 144 act in question and more particularly in Cal. 724, 78 Pac. 290, cited by appellants, is conformity with subdivision 39 thereof. As not in point. That was not a case where we have already pointed out, section 39 rethe directors refused to act. It was a suit lates specially to interest on outstanding to enjoin the collection of an assessment, bonds. The decree and the writ directs the and no such question was considered as is levy to pay a judgment. The original coninvolved here in reference to the authority tract between plaintiff and the district is of the board of supervisors in the premises. So completely merged in the judgment, in The important point decided therein is shown a new form of contract, that the court cannot by the following quotation: "A court of see that it is for interest on outstanding equity, as such, in the absence of statutory bonds and therefore payable by the proviauthority, has no jurisdiction to enforce a sions of section 39.” A large number of lien that is created by statute, for the en cases is cited in support thereof, but their forcement of which the statute has provided effect seems to have been misapprehended. a mode. The enforcement of the lien in The quotation made by appellant from Taylor such case can be only in the mode provided v. Root, *43 N. Y. 344, may be accepted as by the statute.” It was also held that the a fair expression of what is held in all of court should have determined the validity them: “The cause of consideration of the of the assessment which it was sought to judgment is of no possible importance; that collect. There is nothing in that case in is merged in the judgment. When recovered consistent with our position here, as we hold the judgment stands as a conclusive declarathat the court below directed the board of tion that the plaintiff therein is entitled to supervisors to follow the mode that is at

the sum of money recovered. No matter least implied by the statute. The objection what may have been the original cause of that the board of supervisors is without au action, the judgment forever settles the thority to estimate the expenses of levying plaintiff's original claim.

This and collecting the assessment is also with assent may have been reluctant, but in law out persuasive force. As suggested by re it is an assent, and defendant is estopped by spondent, no one is presumably better fitted the judgment to dissent. Forever thereto make the estimate than the supervis

after, any claim on the judgment is setting ors, and we think it is implied that they up a cause of action on the contract." It should do so when an emergency arises such is hard to perceive how appellant can obtain as in the case at bar.

any comfort from the quotation. It is too The position taken by appellants that the well settled to be controverted that a judglower court exceeded its jurisdiction in di. ment does not create a new obligation. It recting the board of supervisors to pay over simply presents in a different form the obto the plaintiff from the sum collected a ligation already incurred, and, besides, it sufficient aniount to satisfy plaintiff's de

affords the highest sanction of the law to mand seems to be in accord with the statute.

the validity of the obligation. It seems Respondent rather concedes that the judg to be established by the authorities that the ment is erroneous in this respect, but claims

proper course to pursue when municipalities that it "does not affect the validity of refuse to pay their bonds is by an action at other portions of the decree," and that law to establish the validity of the bonds the decree can be modified by striking out and the amount due thereon, and then to that provision, leaving other portions of apply for a writ of mandate to compel the the decree in full force and effect. Since the proper authorities to raise what is required act provides in the first instance that the tax to satisfy the debt by the assessment and collector and treasurer of the district shall levy provided by statute. The following collect and receive the money, and, "in case cases cited by respondent so hold: Heine y. of neglect or refusal of either of them to Commissioners, 19 Wall. (U. S.) 655, 22 perform the duties imposed by law, then the L. Ed. 223; Herring v. Modesto Irrigation tax collector and treasurer of the county in District (C. C.) 95 Fed. 705, 710; Marra v. which the office of the board of directors is San Jacinto & Pleasant Valley Irrigation situated must respectively perform such du District (C. C.) 131 Fed. 780, 789; Board ties and shall be accountable therefor upon of Supervisors of Riverside County v. Thomptheir official bonds as in other cases," and son, 122 Fed. 860, 59 C. C. A. 70. The latas there is no authority to depart from the ter case was similar to the one at bar, in

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