Byington v. Superior Court

THE COURT.

The petitioners Byington, Filmer, Me Galium, McLaughlin and Murphy, as members of and constituting the Public Utilities Commission of the city and county of San Francisco, and the petitioner Cahill, as the manager of utilities of said city and county, seek by this proceeding to review and annul an order of the respondent superior court adjudging them guilty of contempt and directing that each pay a fine of $100 or in lieu thereof to serve one day in jail for each $5 of the fine remaining unpaid. The alleged contempt consisted of the violation of an injunction entered by the respondent court, the execution of which, petitioners claim, had been stayed by an appeal.

The action in which the injunction had issued was commenced on May 31, 1932, by Meridian, Ltd., a corporation, against the city and county of San Francisco and four other defendants. It was in the nature of an action to quiet title to water rights and for injunctive relief to protect those rights. As between the plaintiff and the city the action involved the rights of the city as an appropriator of water of the Tuolumne Biver in connection with its Hetch Hetchy project, and the rights of the plaintiff as a riparian owner and appropriator of water down stream from the works of the city. At the conclusion of a protracted trial the respondent superior court on June 18, 1936, decreed to the defendant city, as superior to the plaintiff’s riparian right, a prescriptive right to store 235,465 acre-feet of water per seasonal year and enjoined it from storing water in excess of such amount, which amount represented the then capacity of the city’s two reservoirs. Both parties appealed.

It appears that during the progress of the trial, the city had started work on increasing the height of its Hetch Hetchy dam to provide holdover storage in that reservoir for its Moccasin power plant. The work was completed in April, 1938, subsequent to the entry of judgment and while the cause

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was on appeal. The capacity of the dam was thereby increased from 206,000 to 340,830 acre-feet. The enlarged reservoir was filled during the period May 12 to 30, 1938, pending the appeal. "Upon the filing of an affidavit by plaintiff’s counsel, the trial court cited the petitioners to show cause, if any they had, why they should not be adjudged in contempt for storing in the enlarged reservoir a quantity of water in excess of that awarded to the city under its decree. Contrary to the contention of the petitioners herein, the respondent court upon the hearing concluded that the injunction issued by it was wholly prohibitory, and not mandatory, in character and was not therefore stayed by the appeal so as to warrant a storage of water greater than that therein allotted to the city.