City of Alturas v. Gloster

THOMPSON, J.,

pro

tem.

The City of Alturas has appealed from a judgment which was rendered against it pursuant to an order sustaining a demurrer to an amended complaint for declaratory relief and for incidental injunctive relief to prevent a multiplicity of suits. The demurrer was sustained in effect on the grounds that the complaint fails to state a cause of action and that a construction of the contract involved in this suit, “is not necessary or proper at the time under all the circumstances”, as provided by section 1061 of the Code of Civil Procedure.

The complaint alleges that the defendant owns a ranch adjacent to the easterly corporate limits of the City of Alturas ; that the north fork of Pit River flows across the defendant’s land and through the southerly portion of the city; that during times of flood water the river overflowed the lands of both the plaintiff and the defendant to the great damage of the city; that for many years past the defendant has maintained on his premises a diverting dam and levee to prevent the river from overflowing and damaging his land; that in February, 1930, the respective parties to this suit entered into a contract, which was approved by a duly adopted resolution of the city council, by the terms of which the city was authorized to use soil from defendant’s ranch to repair and maintain the levee and to regulate the use of the diverting dam to prevent flooding and damaging of property within the limits of the city, for a consideration of monthly payments to the defendant of amounts equal to the water bills which he was required to pay the city, not exceeding the aggregate sum of $100 per year; that the terms of that contract were fulfilled by both parties for a period of seven years to January, 1937; that without previous notice on January 11, 1937, the city council adopted a resolution that “the rights and privileges . . . were no longer required for the use or benefit of said city and would no longer be used or exercised by said city, and that no further compensation would thereafter be allowed or paid”; that in April, 1937, the defendant recovered judgment in the Justice’s Court of Alturas Township for the sum of $10.70 as compensation under the contract, and in January,

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1938, the defendant commenced suit in the same court for further compensation under the contract in the sum of $34.56, which action is now pending. The complaint further alleges that the defendant claims that the contract is a valid, continuing agreement entitling him to monthly payments of the stipulated consideration therefor. The city does not assert that the contract is void or that it was ever modified or rescinded, but merely alleges that its rights and privileges thereunder are no longer claimed or beneficial to the city. It is then stated that an actual controversy exists between the respective parties to the contract respecting their rights, and that the defendant threatens to institute other actions to recover his compensation unless he is restrained therefrom by injunction. The prayer asks for a determination of the rights of the respective parties under the contract, and that the defendant be enjoined from prosecuting further suits for compensation thereunder.