Rich v. McClure

FINCH, P. J.

This is an appeal from the judgment herein requiring the defendants to “proceed to hear and act upon” the plaintiff’s “application for a permit to appropriate” ten second-feet of the water in Lindsay Slough, a tributary of the Sacramento River, for municipal purposes.

The complaint sets out the application in full, including a map which accompanied and was made a part of the application. The parts of the application material to the questions raised by the appeal are as follows: “The use

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to which the water is to he applied is for municipal purposes. . . . The pipe line to he 24 miles in length, terminating in the existing water supply of Vallejo near Cordelia, in the S. E'. % of the N. E. 14 of See. 12, Tp. 4 North, R. 3 West, M. D. M. . . . For sale at Cordelia to supply the cities of Vallejo, Benicia, Suisun, Fairfield and adjacent territory in the County of Solano having a present population of 25,559. . . . The maps filed herewith only show the pipe line extending to Cordelia, as that is the extent to which applicant intends to construct it, and at that point he will wholesale the water to such of the communities mentioned with which he may be able to negotiate favorable contracts. The applicant has no intention of himself entering into the business of selling water as a public utility, but intends to carry the same to Cordelia and then sell the same at wholesale and that is the place of use so far as applicant is concerned.” The map which accompanied the application showed the locations of Lindsay Slough, a proposed reservoir adjacent thereto, a proposed pipe-line from the reservoir to the point designated in the application near Cordelia, and the cities of Fairfield and Suisun, but did not show the locations of the cities of Benicia and Vallejo or of the “adjacent territory” referred to in the application or of any conduit from Cordelia to either of those cities. The answer alleges that the application was rejected and a hearing thereon refused on the ground that the applicant did not “file a map showing thereon the place or places where it was intended to use the water and further showing thereon the location of the conduits leading from Cordelia and the pipe-line to Cordelia through which the water might be supplied to the place or places for use. ’ ’ Judgment on the pleadings was entered in favor of the plaintiff, directing “that a peremptory writ of mandate issue out of this court, directed to the said defendants and commanding them to forthwith proceed to hear and act upon the said application.”