Johnson Rancho County Water District v. County of Yuba

PIERCE, P. J.

Demurrer to plaintiff’s amended complaint was sustained without leave to amend. Judgment of dismissal followed. We hold this was error but unprejudicial for reasons which will be developed below.

The amended complaint pleaded ownership by plaintiff-appellant water district of four appropriative water rights. (Water Resources Applications Numbers 15204, 15205, 15563 and 15674.) It alleged these rights had been acquired by a written transfer dated January 8, 1959, from Wheatland Water District. Also alleged was a wrongful attempt by defendant-respondent county and defendant-respondent Yuba County Water Agency to interfere with those rights. The relief prayed for (unimportant in the discussion which follows) was a declaration of the parties’ respective rights, a decree declaring a constructive trusteeship for plaintiff’s benefit, and quieting plaintiff’s title.

A demurrer on both general and special grounds was filed and contemporaneously therewith a demand (under Code Civ. Proc., § 449) for production of the written instrument of transfer dated January 8, 1959, which in the amended complaint had been pleaded according to its legal effect but which had not been appended to the complaint. The agreement was thereafter produced and it was filed with the clerk by defendants. It is a part of the record on appeal.

It shows on its face that the water rights covered by the transfer are not those alleged in the complaint at all.

For an unexplained reason two years and fifteen days elapsed between the filing of the demurrer and the court’s order thereon. The order when made, as stated above, sustained the demurrer without leave to amend. It was based

inter alia

upon the ground “Said agreement shows in the face thereof that the above numbered applications were not

[683]

included in. the alleged assignment by the Wheatland Water District to plaintiff. ’’

Appellant’s opening brief ignores the variance between the water rights pleaded and those transferred and that this was the trial court’s first stated ground for sustaining the demurrer. Appellant's entire argument is addressed to what its rights would have been assuming the agreement covered the water rights which the pleading sought to establish.