Allen v. California Water & Telephone Co.

SHENK, J.

The city of Coronado, a municipal corporation, appeals from an order vacating a prior order granting it leave to intervene in this action and striking its complaint in intervention from the files.

Section 387 of the Code of Civil Procedure permits intervention “at any time before trial” by “any person, who

[106]

has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both." The present action was commenced in 1936, the trial began in 1940, and continued over a five-months’ period. Thereafter, various supplemental proceedings and hearings were had, resulting in the entry in December, 1942, of a decree declaring the extent of the paramount rights of the plaintiffs and appearing cross-defendants to water for their respective parcels of land; the extent of defendant’s riparian right; and also the extent to which defendant would be entitled to take water from the Tia Juana basin for exportation under its appropriative right.

In December, 1946, the decree was affirmed by this court, with a slight modification

(Allen

v.

California Water & Tel. Co., 29

Cal.2d 466 [176 P.2d 8]). The effect of the modification was (1) to permit the defendant to export water under certain conditions; and (2) to reserve to the trial court jurisdiction “over the parties and the subject matter so that on the application of any party hereto, or the successor in interest of any party, it may take new evidence on the amount of water seeping or released from the Rodriguez Dam and the, amount of return waters from the Rodriguez Project reaching and crossing the line between Mexico and the United States either in the underground sands or by the surface flow of the Tia Juana River; also, on the subject of any change in conditions of water supply in the portion of the Tia Juana Basin in the United States since the date of the judgment; and with the right to make modified or additional findings of fact and conclusions of law, and to modify the decree accordingly.”

In March, 1947, 11 years after the commencement of the action and seven years after the trial, the city of Coronado filed its complaint in intervention. Permission so to do was granted by an ex parte order limiting the intervention “to those issues left open by the Supreme Court as between the original parties in said action, ’ ’ and denying to the intervener “the right to raise de novo questions which have been litigated and decided between the original parties hereto. ’ ’