Beatty v. Clark Colony Water Co.

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiffs and from an order denying a new trial in a proceeding instituted to obtain the issuance of a writ of mandate.

The substantial facts upon which the proceeding was predicated, and which are in the main undisputed, are these: The plaintiff, Margaret Jane Beatty, became in the month of August, 1910, and has since continued to be the owner and in possession as her separate property of lot 232 in Clark Colony, a subdivision of the Rancho Arroyo Seco in the county of Monterey. The plaintiff, James Beatty, being her husband, is joined with her in the action. The defendant, Clark Colony Water Co., is a co-operative corporation composed of the owners of lots in said subdivision, and organized for the purpose of supplying to each of these lots and to the owners thereof a certain amount of water for irrigation during each year. To the owner of each lot in said tract certificates of stock are issued, wherein the corporation agrees to deliver to the owner thereof water for the proper irrigation of his lot or lots so long as the assessments annually levied upon such shares of stock to cover the cost of such delivery are duly paid. The plaintiffs alleged, and the defendant, by its failure to deny the same, admitted that the defendant had been accustomed at all times to distribute water to its stockholders other than these plaintiffs from about the 15th of December of each year up to and about the 1st of June of the succeeding year, in sufficient quantities to each of said stockholders

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to fill the checks on the land of each from three to four different times during each of said irrigating seasons, and to deliver a volume of water over the whole area of each lot so irrigated nine inches thick each time said irrigation is made; and that said amount of water, commonly known as “9 acre inches of water,” delivered each of said three or four times that said land is irrigated, is necessary sufficiently to irrigate during each season the said lands of said Margaret Jane Beatty. The plaintiffs further alleged and the defendant denied that on or about the first day of December, 1910, and many times since, the said Margaret Jane Beatty demanded of said defendant that it deliver her water sufficient for the irrigation of her said lots, but that the defendant has refused and neglected and still refuses and neglects to deliver said water to her, and that she has received no water whatever upon her said lot of land; and that as a result thereof she has been damaged in a specified sum through her inability to cultivate certain crops thereon requiring such irrigation.