Marolda v. La Piner

GRIFFIN, J.

Plaintiffs, individually and as representatives of the home owners and consumers of water in a certain Tract No. 2037 in San Bernardino County, brought this action to restrain defendants from discontinuing and depriv

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ing them of water service from a certain well or wells located on defendants’ property.

The verified complaint alleges that the original owners of lots in said tract had the use of water from the wells of defendants, and subsequent owners have been furnished water by defendants, or their predecessors, and have had continued use of said water from said wells for more than 20 years; that plaintiffs and their predecessors furnished pipe to said well at the time of installation and it was laid across their properties at their expense; that defendants, doing business as the Carbon Canyon Mineral Springs & Hotel, on August 14, 1946, served notice on all owners and occupants of homes in that tract that they would not supply them with water after October 1, 1946. It is then alleged that plaintiffs and others whom they represent are entitled to water service from defendants on the same basis as they have been furnished water in the past. Plaintiffs sought a temporary order enjoining defendants from discontinuing such water service during the pendency of this action.

Upon this complaint and the affidavits of plaintiffs, alleging in more detail the facts related, the trial court issued the temporary injunction upon the deposit by plaintiffs of a bond for $200 to protect defendants from loss. The minute entry granting the injunction ordered that the water users pay for water furnished in an amount to be fixed by the court. A demurrer to the complaint was filed as well as a motion to dissolve the temporary restraining order. The demurrer was overruled and 10 days given to answer. Defendants appealed from the temporary restraining order.

Under point one defendants contend that the court had no jurisdiction pertaining to the rights of other owners in the tract, without alleging a contractual relationship and without setting forth their rights, citing sections 367, 378 and 434 of the Code of Civil Procedure. The complaint recites that plaintiffs and all of the homeowners and consumers are in the same class, and the character of the rights to be enforced herein is common to plaintiffs and other homeowners and consumers in the tract; that there are common questions of law and fact affecting their rights, and a common relief is sought; that plaintiffs bring this action for themselves, and also in behalf of all of said owners and consumers.