Felton Water Co. v. Superior Court

California Court of Appeal Apr 18, 1927 No. Docket No. 5840.Published

Before: Cashin

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Holding. The court held that it has jurisdiction in a condemnation proceeding to prevent a plaintiff from taking possession of property prior to the entry of judgment, and that a writ of prohibition is not the appropriate remedy to challenge the court's exercise of that jurisdiction.

Issues

Whether a superior court has jurisdiction to restrain a plaintiff in a condemnation proceeding from taking possession of property prior to the entry of judgment.
Whether a writ of prohibition is available to prevent a court from deciding the sufficiency of pleadings or granting relief in a condemnation proceeding.

Disposition. denied

Quotations verified verbatim against the opinion

“The court in such a proceeding has jurisdiction on motion to prevent the plaintiff from taking possession of the property sought to be condemned until an order is made authorizing it”

“In the pending proceeding the court has jurisdiction both of the parties and of the subject of the litigation; and in the exercise of its power to hear and determine the issues necessarily involved has the incidental power to prevent the plaintiff from taking possession prior to the entry of judgment”

CASHIN, J.

— An application for a writ of prohibition to arrest further proceedings in respondent court on an order requiring petitioner to show cause why it should not be restrained pending the trial of an action filed therein from further obstructing the flow and diverting the waters of a stream.

Petitioner, a corporation, was organized in 1889 for the purpose of supplying the inhabitants of the town of Felton and its vicinity with water for domestic and other uses. An action was filed in August, 1926, by petitioner in respondent court against Forest Lakes Mutual Water Company, Seminary Avenue Land Company, Santa Cruz Land Title Company, corporations, George H. Fetherston, and

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others to condemn an easement, to wit, the right to take, divert, and carry away as against the lands of defendants 150,000 gallons of water per day from Limestone Brook, which is a branch of a stream called Gold Gulch in Santa Cruz County, with the right to sell the same to the general public and to the inhabitants of the town of Felton for domestic and other uses at such rentals and charges as are fixed by the railroad commission of the state of California. The complaint alleges that at all the times since the month of June, 1925, plaintiff has diverted from the stream, when there was that quantity flowing therein, approximately 86,000 gallons of water per day; that the diversion was made by means of a dam constructed on the property of defendant Santa Cruz Land Title Company, and that the water has been taken for sale, rental, and distribution to the inhabitants of the town of Felton and its vicinity and to the inhabitants of the lands owned by the defendant last named, to be used for domestic and irrigation purposes; that the dam, pipe-lines, and other instrumentalities used for that purpose have been devoted by plaintiff to a public use, namely, for the diversion and storage of the waters of the stream for sale and distribution to the inhabitants mentioned; that the right sought to be acquired is necessary to the public use referred to in that the water which plaintiff has heretofore diverted is insufficient to supply the demands made upon plaintiff for the above purposes.

The foregoing averments, except those of a previous diversion of a portion of the stream and the quantity so diverted, were traversed by an answer filed by Forest Lakes Mutual Water Company, Seminary Avenue Land Company, and others of the defendants, not including Santa Cruz Land Title Company or George H. Fetherston. The answer alleges that none of the water was diverted by plaintiff prior to October, 1925, and that none has been diverted since except as the agent and instrumentality of defendant Fetherston; that the latter is the owner of all the stock of petitioner except the qualifying shares thereof held by certain of its directors, and that all the water diverted by petitioner since the last-mentioned date has been diverted for the purpose of aiding Fetherston in the development and sale of his private lands and not for a public use nor for the benefit of the public; that the town of Felton is no longer

Felton Water Co. v. Superior Court

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CASHIN, J.

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