Mahoney v. American Land & Water Co.

HARRISON, P. J.

The defendant is a corporation, organized as such under the laws of this state, for the purpose, among' others, of distributing water for compensation to the residents of the townsite of Larkspur, in Marin county. The plaintiff is a resident of that township, and on the first day of November, 1903, paid to the defendant the amount demanded by it as an advance payment for water to be delivered to him upon his premises during the said month of November, and made demand that it supply him with water thereon. The pipes of the defendant were at that time connected with the pipes upon the plaintiff’s premises, and in a condition to carry water thereto, and the appellant had supplied him with water upon said premises for more than ten years prior thereto, and had at that time a sufficient quantity of water with which to comply with his demand. It refused, however, to deliver any water to him upon his said premises, and he thereupon applied to the superior court of Marin county for a writ of mandate, commanding it to furnish him with a continuous supply of water during said month of November, and thereafter as long as he should comply with its rules

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and regulations. The defendant demurred to the petition of the plaintiff, and, its demurrer having been overruled, answered the same. Upon the hearing the court granted the petition, and the defendant has appealed therefrom upon the judgment-roll without any bill of exceptions.

The judgment of the court is fully sustained by its findings of fact, and, in the absence of a bill of exceptions, it must be assumed that those findings and each of them were supported by relevant and competent evidence, free from any objection on the part of defendant. The appellant, however, contends in support of its appeal that the petition of plaintiff does not state facts sufficient to entitle him to the relief demanded, and that its demurrer on that ground should have been sustained. The point urged in support of this contention is that there is no averment in the petition that the defendant is in control of a public use, or that the plaintiff is a beneficiary thereof. While it is true that the petition does not make these averments in direct language, yet the facts which are set forth therein show, not only that the appellant is in fact in control of a public use, but also that the respondent is a beneficiary of that use. The constitution (article 14) recites that “the use of all water now appropriated, or that may hereafter be appropriated, for sale, rental or distribution, is hereby declared to be a public use.” In