Williams v. Merced Irrigation District

WASTE, C. J.

The question presented by this appeal may be stated as presented by the respondent: “Where a public agency has taken possession of real property, and devoted it to a public use, is an action by the landowner for compensation for the land so taken one based on contract and transitory, or one for injuries to real property and therefore local?” The trial court held the action to be

[240]

transitory, and granted the motion of defendant for a change of place of trial from Mariposa County, wherein the land of plaintiffs is situated, to Merced County, the place of residence of the defendant irrigation district. The appeal is from that order.

The defendant is a duly formed and existing irrigation district under the laws of the state of California—a public corporation for municipal purposes with the right to take and distribute water for public use.

(In re Madera Irr. Dist.,

92 Cal. 296 [28 Pac. 272, 27 Am. St. Rep. 106, 14 L. R. A. 755];

Turloclc Irr. Dist.

v.

White,

186 Cal. 183 [198 Pac. 1060, 17 A. L. R. 72];

Whiteman

v.

Anderson-Cottonwood Irr. Dist.,

60 Cal. App. 234 [212 Pac. 706].) In the exercise of this right the district constructed' a dam in the Merced River, thereby creating an artificial lake the water in which “backed up”, flowed over, and covered a portion of the appellants’ land. By this action, it is alleged in the complaint, the district has wrongfully and unlawfully trespassed upon the land, and greatly and permanently injured and damaged it, and is about to take the whole thereof “for an alleged public use without first making just compensation therefor ... all to plaintiffs’ injury and damage in the sum of $10,000.00”. The prayer is for damages in that, amount, and that, in the event the damages are not paid, the district be enjoined from asserting any right to possession of the land, and that plaintiffs have restitution thereof.