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relevant to the issue of fraudulent intent, ciation in the value of the whole of his tract of and this was sufficient to entitle the evidence land adjacent to the stream, depending as well to be admitted.
on the depth of the land as its frontage on the
stream. The rules relating to the admission of
[Ed. Note. For cases in point, see Cent. Dig. such evidence were carefully complied with. vol. 18, Eminent Domain, $ 250.) Ground was first laid implicating the defend
Appeal from Superior Court, Contra Costa ant in the case under trial, the defendant
County; Wm. S. Wells, Judge. was shown to have committed the extrane
Condemnation proceedings by the Hercules ous crime, the similarity of the offenses was
Water Company against B. Fernandez and apparent from the evidence, and the jury
others. From a judgment for plaintiff, said were properly instructed by the court as to
defendant Fernandez appeals. Reversed, with the purpose of the introduction of the evi.
directions. dence. There was no error in the introduction in evidence of "Exhibit B," nor in per
Morrison, Cope & Brobeck, for appellant. mitting the prosecution to introduce the tes
Pillsbury, Madison & Sutro, for respondent. timony given in connection therewith. Defendant's motion for a new trial, as dis
CHIPMAN, P. J. Eminent domain. The played in the transcript, also relies upon the
complaint alleges corporate organization of
plaintiff under the laws of this state, for the ground that the court erred in instructing the jury. No particulars are specified in the
purposes, among others, of acquiring water transcript, and none presented in the brief.
rights, "on one or more rivers, creeks or An examination of the instructions in the
streams within the state of California; of record fails to disclose any error in this re
acquiring, purchasing, erecting, constructing, spect..
holding, owningimproving and leasing The amendment of section 470 of the Pen
dams, reservoirs, tanks, canals, flumes, aqueal Code in 1905 did not affect section 476,
ducts, ditches, pipe lines, and other waterand section 470 has no application here.
ways or conduits, and securing and impoundThat amendment applies only to the "signing | ing springs, streams, and all other waterof the name of a fictitious person,” with the ways; of buying, selling. owning, or otherintent to defraud, while the crime here
wise dealing in, water for domestic, irrigacharged is the passing of a fictitious bank tion, manufacturing, and all other purposes; note of a bank having no existence.
of furnishing, supplying, and selling the same The judgment and order of the trial court to any county, city and county, city, town, are affirmed.
and the inhabitants thereof; of acquiring,
constructingand maintaining reservoirs, We concur: ALLEN, P. J.; SHAW, J. tanks, canals, pipe lines"; avers the owner
ship of water rights in the waters of Pinole (5 Cal. App. 726)
creek, Contra Costa county, "being the right
to divert and use the waters of said creek HERCULES WATER CO. v. FERNANDEZ et al. (Civ. 116.)
and to store the same for the purpose of
supplying the inhabitants of the town of (Court of Appeal, Third District, California. June 17, 1907.)
Pinole and of the town of Hercules and of 1. EMINENT DOMAIN-CONDEMNATION - PUB
other places in the said county of Contra LIC USE-COMPLAINT.
Costa, with water for domestic and other The complaint of a water company to con necessary and useful purposes"; avers the demn water rights, alleging a necessity therefor, ownership of a reservoir and pumping plant for the purpose of supplying the inhabitants of the town of H. and of the town of P. and of
and pipe line whereby said water is diverted "other places in said county" of C. with wa from said creek and pumped into said reserter, does not, as it must, show a necessity for voir; that it owns pipe lines leading from condemnation exclusively for a public use, under Code Civ. Proc. § 1238, authorizing the exercise
said reservoir to various places in the towns of the right of eminent domain in behalf of named, "and elsewhere in said county," by canals, ditches, etc., for conducting or storing means of which "it now supplies water for water "for the use of the inhabitants of any county," city, village, or town.
said purposes to the inhabitants of said town [Ed. Note.For cases in point, see Cent. Dig.
of Hercules and to the inhabitants of said vol. 18. Eminent Domain, $ 512.]
town of Pinole, and by means of which it 2. SAME-REVIEWFINDINGS-PUBLIC USE,
expects and intends to supply water for like Where in condemnation proceedings there purposes to the inhabitants of other places is a question of fact, on conflicting evidence, as in said county''; that the uses and purposes to whether the use for which the property is sought to be condemned is one of those author
for which the property, rights, and easements ized by the statute, the finding of the trial already acquired have been and are being court thereon is conclusive, to the same extent appropriated are public uses within the meanas the findings of fact in other cases; but its finding that a certain use, not one of those for
ing of the law of this state: that it is neceswhich the statute authorizes condemnation, is
sary, in order to make effective use of the a public use. is not binding; only the uses enu waters of said creek as aforesaid by means merated by the statute being public uses for the
of dams erected across said creek at various purpose of condemnation. 3. SAME-MEASURE OF DAMAGES.
places thereon above the lands of defendant, The measure of damages for condemnation to impound all the waters of said creek in of a riparian owner's water rights is the depre order to facilitate the taking all of the water
of said creek at a point or points above the land of defendant, to wit, at the said pumping station and at other points on said creek, and to store the same in said reservoir of plaintiff; that plaintiff is the owner of all the riparian lands and rights upon said creek which are affected by the diverting of said water, as aforesaid, except the premises hereinafter described. The complaint then describes the lands of defendant Fernandez and other defendants alleged to be affected by the condemnation sought and alleges that said creek flows through each parcel of land thus described to the waters of which defendants are the owners of riparian rights; "that for the purpose of supplying the inhabitants of the town of Hercules and of the town of Pinole and of other places in said county of Contra Costa with water as aforesaid it is necessary that the plaintiff should acquire, have and hold an easement in and to all the waters of said Pinole creek * * for the aforesaid use and purpose of supplying the inhabitants of the said towns named, and of other places in said county of Contra Costa with water." The defendants other than defendant Fernandez made default, which was duly entered. Defendant Fernandez demurred to the complaint generally for insufficiency of facts, and specially on the grounds of uncertainty, ambiguity, and unintelligibility. The demurrer was overruled, and defendant Fernandez answered, denying specifically the material allegations of the complaint.
The findings follow closely the allegations of the complaint; the court finding, among other facts, that plaintiff at the commencement of the action, was supplying water, and since has been supplying water, as alleged. to the two towns namedl, and "expects and intends to supply water for like purposes to the inhabitants of said towns and of other places in said county." The court also finds that, in order to make effective use of said water sufficient to supply the inhabitants of said two towns "and of other places in said county with water," it is necessary to impound the waters of said creek as alleged in the complaint; that for the purpose of suljplying the inhabitants of said towns "and other places in said county of Contra ('osta with water, it is necessary that plaintiff acquire
an easement to all the waters of said Pinole creek, to wit," the right by means of dams at various places above defendant's land and store the same, "for the aforesaid use and purpose of supplying the inhabitants of the town of Hercules and of the town of Pinole and of other places in said county of Contra Costa with water."
In assessing the damages, the court found the total damages to be $2.67.), as follows: (1) That the rights and easements belonging to deferiant Fernandez are fixed at $1.000); 2) the damage to accrue to the first second, and third parcels of his land, as described in the
complaint, is fixed at $25 each, and to the fourth parcel it is fixed at $1,600, the last three items of damage by reason of the sever. ance of his said riparian rights from said parcels of land. The findings generally follow the allegations of the complaint, and the judgment follows the findings. Defendant Fernandez appeals from the judgment on bill of exceptions.
It is urged by appellant that the general demurrer should have been sustained, for that it is sought by the proceedings to condein water for the use of places in the county which are not described as cities, towns, or villages or otherwise as required by statute law. The special denurrer also points out that the complaint is ambiguous, uncertain, and unintelligible among other grounds, because it cannot be ascertained therefrom' whether it is necessary to condemn the said water rights for the purpose of supplying the inhabitants of the towns named, or for the purpose of supplying the inhabitants of "other places" in said county.
Section 1238 of the Code of Civil Procedure provides as follows: "Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following uses:
* (3) * nals, aqueducts, reservoirs, tunnels, flumes, ditches or pipes for conducting or storing Water for the use of the inhabitants of any county, incorporated city, or city and county, village or town.
* " Section 14, art. 1, of the Constitution, probibits the taking or damaging of private property for public use without just compensation having first been made. We are, however, to look to the Legislature to ascertain what constitutes a public use and for the authority to exercise the right of taking or damaging private property for a public use. The only limitation upon this power is contained in the Constitution. Lindsey Irrigation Co. v. Jehrtens, 97 ('al. 76, 32 Pac. 802. Section 1241 of the ('ole of Civil Procedure provides that before private property can be taken it must appear "that the use to which it is to be applied is a use authorized by law," and the uses so authorized are those specified in the statute (sertion 1238, Code Civ. Proc.), and none others.
The words "the inhabitants of," as used in the complaint, we think should be read in connection with the words "other places in the county of ('ontra ('ostal," and it was not necessary to repeat them before the latter words. But these latter words, as used in the complaint, are clearly in addition to and were intended to embrace territory different from that of a town, village, city, or incorporated city and county. Unless, therefore, a construction can be given to these words which would make them equivalent to an averment that the purpose was to supply with water the inhabitants of the county of ('ontra Costa, we do not see how the complaint can be upheld as seeking to condemi
for a public use. Such construction, how
Such construction, how- , ready acquired and owned have been, and ever, we think unwarranted. “Other places" at the time of the commencement of this cannot mean all places in the county other action were, and now are being appropriatthan the towns of Hercules and Pinole, nor ed, are public uses.” But had the finding can the complaint be held to mean all the in gone to the extent claimed, we do not think habitants of the county other than said it would have been conclusive upon this towns. The terms are too indefinite to em court. The statute under examination in the brace either the whole county or any par case just cited made the supplying of farmticular body of the inhabitants who are to ing neighborhoods with water a public use. be supplied with water. Apparently, the The question involved was as to the suffiplaintiff is to be the exclusive judge of whom ciency of the evidence to sustain the judgand what places it will supply with water, ment that the particular land constituted a and no reciprocal right attaches to any par farming neighborhood. The court did not ticular group of the inhabitants of such places mean that the trial court could conclusively to demand service of plaintiff. “The other determine what the Legislature alone can places might be," as suggested by appellant, determine. It is not sufficient for the plead"factories, such as that of the California er to allege that the use for which property Powder Works, or they might be farms be is to be taken is a public use. The comlonging to one individual, or hotels, stores, plaint must show that the use is one of those shops, residences, or innumerable other pri enumerated in the statute, and the trial court vate places and establishments." Nor do we cannot obviate this requirement by finding think by this illustration "that counsel are the use to be a public use. It was said in sticking in the bark," as replied by respond the case last cited: "Whoever, under the ent. It is true that in supplying these places claim of agency of the state, would deprive plaintiff would be engaged in supplying water the owner of any of the property by virtue of to some of the inhabitants of the county of the exercise of eminent domain, must show Contra Costa, but would plaintiff be under not only that the use for which he seeks to obligation to supply the inhabitants of the appropriate it is a public use, but also that whole or any definite part of the county? the Legislature has authorized the taking of It was said in Lindsay Irr. Co. v. Mehrtens,
property for that particular use, and in the 97 Cal. 081, 32 Pac. S03: "It is not neces mode in which he is seeking to appropriate sary that the entire public shall enjoy the it. The Legislature must designate, in the use, or even that it be capable thereof, but first place, the uses in behalf of which the the use must be capable of enjoyment by all right of eminent domain may be exercised, who may be within the neighborhood, and and this designation is a legislative declarathere must be within that neighborhood so tion that such uses are public and will be great a number of the entire public as to recognized by the courts; but whether, in any destroy its character as a private use."
individual case, the use is a public use, must The statute authorizes the exercise of the be determined by the judiciary from the right of eminent domain (except as to towns, facts and circumstances of the case." As we villages, and incorporated cities), in behalf understand the decision: If, for example, a of canals, ditches, etc., for "conducting or question of fact had arisen as to whether storing water for the use of the inhabitants
or not Hercules is a town or village, it of any county," not for the inhabitants of would be for the court to determine that places in any county, indefinitely described, fact, and its finding upon conflicting testior for the inhabitants less than those of the
mony would be conclusive. But if the Legisentire county. All may not enjoy the use, lature had not provided for the condemnation but the use must be capable of enjoyment by of riparian rights for the benefit of towns or all. In the Lindsay Case, supra, the court villages, no right of condemnation could rest said: "Whether the particular region is a upon such finding by the trial court, even farming neighborhood, and whether the sup with the added finding that the supplying plying of water to that neighborhood consti of water to such towns was a public use. tutes a public use, are questions of fact which corporation can no more condemn property must be determined by the court before whom for purposes not declared to be public uses the proceeding is had, and its decision thereon than for purposes without the power conmust be held conclusive upon this court to the ferred by the corporation charter; and that same extent as in other cases where it is this latter cannot be done was held in Chicacalled upon to determine matters of fact." go & N. W. Ry. Co. v. Galt, 23 N. E. 423, 24 It is hence urged by respondent that, as there N. E. 674, 133 Ill. 657, conceded by respondis a finding to the effect, as is claimed, that ent to be good law.
Mr. Lewis says: *The the supplying of water to the inhabitants of petition should show the use or purpose for the town of Hercules and of the town of which the property is desired, and that it Pinole and other places in said county of is within the statutory powers conferred. It Contra Costa, constitutes a public use, is should show a clear right to condemn the conclusive upon this court. The finding of property described.” 2 Lewis on Eminent the court was not that to supply water to Domain, $ 353. See, also, 7 Ency. of Pl. and "other places in said county" was a public Pr. p. 526. "Where the proceeding show's use, but that "the rights and easements al upon its face two distinct uses or purposes,
one lawful and the other not, which are so the riparian rights, and in addition allowed inseparably blended in the petition and a separate sum for the rights and easements orders as not to be severable, it cannot be belonging to appellant. In the present case sustained.” Id., p. 527. Here, both by aver the riparian rights alone were sought to be ments of the complaint and by the findings condemned, and the water was to be taken and judgment of the court, a necessity is al at a point above appellant's land. No part leged and found for the condemnation to of his land was sought to be taken. It seems supply not only the inhabitants of the towns to us that the true rule is stated by respondnamed, but also of other places in the county ent—that the measure of damage to a ripariof Contra Costa.
an owner by the appropriation or diversion Nor can the terms "other places" be disre of the waters is the depreciation in the value garded as surplusage or stricken out by of the property affected by the taking. The amendment of the judgment. The court question was thus disposed of in Lee et al. found that the water was necessary not only v. Springfield Water Co., 35 Atl. 181, 176 Pa. for the inhabitants of the towns named, but 223, where the court said: "The defendant that, in order to make effective use of said had seized a part of the waters of Crum waters sufficient to supply the inhabitants of creek for the supply of its waterworks. The said two towns and other places in said coun plaintiffs are mill owners on the same ty, it is necessary that plaintiff acquire an stream, and below the point at which the easement to all the waters of said creek. We water is taken. The object of this action is cannot say that the trial court would have to ascertain the damages sustained by the found it necessary to condemn all the waters plaintiffs by reason of the appropriation of a of the creek if plaintiff had not expressed an portion of the water of the stream that had intention in its complaint to use the waters previously flowed through their property, and of the creek elsewhere than in said towns been used by them to aid in propelling their and had asked for a decree to that effect. machinery. The true measure of damages to Mr. Lewis cites cases holding that, where an be applied in all cases of a taking by virtue act combined a private use with a public use
of eminent domain is involved in no doubt. in a way that the two cannot be separated, It is easy of application. It is the depreciathe whole act is void. He adds: “So an ap tion in value of the property affected by the plication under an act to condemn property taking. Where land is taken, this has been for purposes, part of which are within, and said so frequently that it would be a work part not within, the act, will be bad in toto." of supererogation to cite the cases in which 1 Lewis on Eminent Domain, $ 206. If plain the doctrine has been stated and applied. It tiff had no right to condemn the riparian was applied in Miller v. Water Co., 23 Atl. rights of defendant Fernandez to supply wa 1132, where, as in this case, a water company ter to the inhabitants of other places than had appropriated water, and a lower riparian the towns named, the complaint was indefi owner complained that he was injured by nite and uncertain in the particular claimed, the appropriation. It is the proper measure as well as seeking the aid of the statute for of the plaintiff's damage in this case. The an unauthorized purpose. A private corpora jury should inquire what the property affecttion formed for private gain, under guise of ed was fairly worth immediately before the serving the public, should not be permitted water was appropriated and what it was to take private property through the extra worth affected by the appropriation. The ordinary remedy of eminent domain, and un difference, if any, is the loss actually susder an assumed agency of the state, upon any tained, and therefore the measure of the strained or doubtful construction of the stat plaintiff's right to recover damages." It was ute declaring what are public uses.
also so held in City of Syracuse v. Stacey et Error is claimed arising out of the method al., 62 N. E. 354, 169 N. Y. 231. adopted by the trial court in assessing the Appellant claims that the extent of the ri. damages. As the cause must be remanded parian right is to be measured by the area for a new trial, we deem it best to notice this of land adjacent to the stream and within point. Over defendant's objection, the court the watershed, citing Alta Land, etc., v. Hanallowed the witness McMahon to testify that cock, 85 Cal. 219, 229, 230, 24 Pac. 645, 20 the value of water rights all along the banks Am. St. Rep. 217; and Wiggins v. Muscupiabe of Pinole creek was about $2 per running L. & W. Co., 113 Cal. 182, 195, 45 Pac. 160, foot, apparently without regard to the extent 32 L. R. A. 667, 54 Am. St. Rep. 337. There of the land at different places lying back of seems to be but little if any disagreement the creek. There were several tracts of land between counsel upon the rule. The point of appellant, marked on the map used at the made by appellant is that the measurement trial, of various acreage—in all about 182 of damage by the running foot was, in view acres through which the creek flowed for a of the facts of the case, an improper method distance of about 1,190 feet. The damage of ascertaining the compensation, and upon awarded was $2.675, made up as shown the point we agree with appellant. Such above. Whether appellant was injured by method wholly disregards the extent of the this particular testimony is not clear, for the land adjacent to the stream and within its court seems to have assessed the damage to watershed and owned by the defendant. The all the land, by reason of the severance of riparian right to a narrow strip of land a
hundred feet wide would thus have the same recover $200 as money had and received. value as it would have if the body of land had Judgment was for defendant (petitioner here) a width of a thousand feet. Then, again, the for costs, and plaintiff appealed. waterfrontage in question embraced land ly The judgment was rendered April 25, 1907. ing along a creek of fresh flowing water, and and on May 23, 1907, plaintiff served defendland also whose frontage was on tide water ant with a notice of appeal to the superior unfit for domestic use. It is not probable court from said judgment. The same day he that the riparian right was of equal value filed an undertaking on appeal reciting that foot by foot of all this frontage.
his appeal was "from a judgment entered The single fact to be determined was the against him, in said action, in the said sudepreciation in the value of the property af perior court," etc., and obligating the sureties fected by the taking away from it the water in the sum of $300, instead of $100. On May sought to be condemned, to be ascertained, 24th, the justice of the peace certified the of course, by competent and proper evidence. records and papers in the case and filed them
The judgment is reversed, with directions in the superior court. Defendant gave notice to sustain the demurrer; plaintiff to have of exception to the sufficiency of the underleave to amend its complaint, if so minded. taking and of the sureties thereon on May 27,
1907, and May 29th notice of intention of We concur: HART, J.; BURNETT, J.
sureties to justify was served on defendant
without time being fixed in the notice; after (5 Cal. App. 762)
oral notice of the time and an adjournment LANE v. SUPERIOR COURT OF KINGS
of the hearing to May 31st, counsel for plainCOUNTY. (Civ. 404.)
tiff in open court, on that date, stated that (Court of Appeals, Second District, California.
one of the sureties on the undertaking could June 19, 1907.)
not justify and the court adjourned without 1. JUSTICES OF THE PEACE APPEAL-UNDER any justification of any surety on that or any TAKING.
other undertaking. Thereafter, on said 31st Code Civ. Proc. $974, authorizes an appeal
day of May, 1907, the plaintiff filed in the of. from a justice's judgment at any time within 30 days after its rendition. Section 978 provides
fice of the clerk of the superior court an unthat an appeal from a justice's court is not ef dertaking entitled: "In the Justice's Court fectual unless an undertaking be filed, etc. A
of Lucerne Township, County of Kings, State party appealing from a justice's judgment filed within 30 days of its rendition an undertaking.
of California"--and in the cause mentionel, The sureties failed to justify, and after the ex reciting that he has appealed "from a judgpiration of the 30 days he filed a new undertak ment made and entered against him in said ing. Held, that the superior court acquired no jurisdiction to entertain any proceeding in the
action in the said superior court, in favor of case except a motion to dismiss the appeal. the plaintiff” (himself], etc. Notice of the fil
[Ed. Note.-For cases in point, see Cent. Dig. ing of this bond as a new undertaking, and vol. 31, Justices of the Peace, & 555.]
of the intention of the sureties thereon to jus2. SAME.
tify before the superior court on June 1, 1907, Where the successful party in justice's
was given to defendant the same day, and court moves for the dismissal of an appeal, on the ground that the superior court acquired no
the latter appeared by counsel in the superior jurisdiction for failure of the defeated party to court at the time named in the notice and obfile an undertaking as prescribed by statute, the
jected to the filing of a new undertaking on superior court cannot take jurisdiction on the theory that the issues involve title to or posses
appeal in the said cause, on the grounds that sion of real property.
no notice had been given defendant of the 3. PROHIBITION-GROUNDS FOR RELIEF-WANT proceedings under which said undertaking OF JURISDICTION.
was filed, and that the filing of a new underWhere the superior court takes jurisdiction of a cause on appeal from a justice's court, not
taking and justification of sureties thereon withstanding the failure of the party appealing was not authorized by law. The court overto perfect his appeal as required by statute, the ruled the objection, and defendant excepted. Court of Appeal, on petition of the successful party, may issue a writ prohibiting the superior
At the same time and place, all parties being court from proceeding with the trial of the in court by counsel, and notice being waived, cause.
defendant moved the dismissal of the appeal (Ed. Note. For cases in point, see Cent. Dig. on the ground that the court had acquired no vol. 40, Prohibition, 88 37-56.]
jurisdiction of the case. He specified as reaApplication for writ of prohibition by 0. P. sons: That the original undertaking was faLane against the superior court of the county tally defective, in that it described no judgof Kings. Writ granted.
ment appealed from; that the sureties had Robert W. Miller, M. L. Short, and Whea failed to justify, and no other sureties had ton A. Gray, for petitioner. T. M. McNa
justified in their stead; that the new under. mara and R. J. Hudson, for respondent. taking filed in the superior court more than
30 days after the rendition of the judgment in TAGGART, J. Application for writ of the justice court was ineffective. The suprohibition. One David Bonham commenced perior court overruled this motion and set an action in the justice's court of Lucerne the case for trial June 20, 1907. Petitioner township, Kings county, against petitioner to (as defendant and respondent in that case)