Walters v. Pine Cove County Water District

MONROE, J. pro tem.

*

The petitioners and appellants, being the owners of land within the Pine Cove County Water District, petitioned that district to exclude their property therefrom. The petition was denied. This action was brought for a writ of mandate to compel the exclusion of the property from the district. The superior court granted the writ of mandate but directed the water district to hold supplemental and further hearings on due notice. The appeal is taken from that portion of the judgment whereby a supplemental and further hearing is ordered.

The appellants contend that the evidence before the board established without conflict that the property sought to be excluded would not be substantially or directly benefited by its continued inclusion in the district.

The proceedings for exclusion were pursuant to section 32200 et seq. of the Water Code. By section 32222 it is provided that after hearing the board shall order the exclusion in case “The board determines that the land will not be substantially and directly benefited by its continued inclusion in the district.” The trial court held, pursuant to the rules laid down in

Atchison etc. Ry. Co.

v.

Kings County Water District,

47 Cal.2d 140 [302 P.2d 1], that the board erred and abused its discretion in refusing to exclude the property. At the hearing plaintiff Walters and plaintiffs’ engineer testified that the land had an available sufficient water supply and that it would receive no benefit from being in the district. There was some evidence received in opposition to the application, but in that evidence, aside from mere matters of opinion, there was nothing substantial to the contrary. The trial court held, however, pursuant to the rules laid down in

Fascination, Inc.

[500]

v.

Hoover,

39 Cal.2d 260 [246 P.2d 656], that the matter should be remanded to the board for further hearing. In the Fascination case the court stated that “it is settled that where determinative powers are vested in a local administrative agency and the court finds its decision lacks evidentiary basis, a hearing was denied or it was otherwise erroneous, it is proper procedure to remand the matter to the agency for further and proper proceedings rather than for the court to decide the matter on the merits. ’ ’