Sutter-Butte Canal Co. v. Great Western Power Co.

FINCH, P. J.

This appeal is from an order denying defendants’ motion for a change of venue.

The complaint alleges that the plaintiff is a public utility engaged in the sale and distribution of water to the inhabitants of Butte and Sutter Counties for irrigation and domestic uses; that it is the owner of a canal heading at a point on Feather River in Butte County and running thence through that county and Sutter County; that it is the owner of the right to appropriate, divert throug’h said canal, and use 2,500 second-feet of the water naturally flowing in Feather River; that an appropriation of 2,000 second-feet of said water was made at the head of said canal in the year 1902 and that an additional appropriation of 500 second-feet thereof was made in 1918 at a point in Sutter County where plaintiff pumps water from the river into its aforesaid canal; and that the defendants claim said water adversely to plaintiff and “threaten to impound and store and take and divert large quantities of the waters of said Feather River above the said diverting works of plaintiff at times when there will remain less water flowing in the said river than the said quantity so appropriated and used by plaintiff, and so as to prevent plaintiff from diverting and using the same.” The prayer is for a decree quieting plaintiff’s title to the 2,500 second-feet of water and enjoining defendants from interfering with plaintiff’s use thereof.

[599]

The defendants demanded that the trial of the action be had in Butte County on the ground “that the cause of said action is for the determination of an estate or interest in real property and that the subject of said action, to wit, such real property and interest therein is situated, particularly the alleged property right in and to the alleged right of appropriation of 2000 cubic feet per second of the waters of the Feather River, as alleged in said complaint, in the County of Butte, State of California, and that said real property so alleged in said complaint to be the property of said plaintiff is a separate and distinct property and property right entirely situated in said County of Butte, State of California, and no part of said property or property right is situated outside of the said County of Butte.” Article VI, section 5, of the constitution provides “that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated.” The parties are agreed that the property right asserted by plaintiff is real property. In