Marr v. City of Glendale

JAMES, J.

Appeal from a judgment denying to the plaintiff a writ of mandate. Plaintiff brought this action for the purpose of compelling the city of Glendale and its officers to furnish her water for domestic and other uses. Her complaint contained three causes of action, the first and third of which only were relied upon at the trial. Under the first alleged cause of action the right claimed was that of a property owner who, having been regularly served with water by the vendor thereof, is arbitrarily cut off from the supply. The right claimed under the third alleged cause of action was different and depended mainly upon the question as to whether an inhabitant of a city, which city is engaged in furnishing water for the use of such inhabitants, can in every case compel the municipality to connect the property of such inhabitant with its supply pipes. In the first alleged cause of action plaintiff set forth that a number of years prior to the date of the commencement of the action her property had been connected to a four-inch water main owned by the Glendale Consolidated Water Company, which main was

[750]

in turn supplied from a certain stream flowing in Verdugo Canyon; that this pipe was disconnected from the stream several years prior to the commencement of the action and that subsequent to its being so disconnected the city of Glendale acquired all the water rights and the distributing system of said Consolidated Water Company, and that subsequent thereto plaintiff’s property had been without water, except such as was brought upon it by use of a pail. In the third cause of action facts were set forth showing that the city of Glendale had engaged in the business of supplying water to its inhabitants and had acquired a water system for that purpose. The answer denied that plaintiff’s property was not provided with a water service, although it was admitted that this service was not being given .by the city of Glendale. The preliminary facts, as stated by the complaint, were admitted and an affirmative defense was made which was available in answer to both the first and third causes of action. In this defense it was alleged as follows: “The defendants allege that the property mentioned in plaintiff’s petition is located in the Verdugo Canyon, more than one mile north and east of any of the distributing lines used in connection with the water system of the city of Glendale; that said property is located at an elevation of more than two hundred feet above any reservoir owned by said city from which water could be furnished to her from its present distribution system. That in order to furnish the plaintiff with water for domestic use the city of Glendale would be compelled to construct a reservoir somewhere in the vicinity of plaintiff’s property at such an elevation as is necessary to furnish proper pressure, and would then have to lay and conduct pipes from such reservoir to plaintiff’s said property, all of which would amount to a large expenditure on the part of the defendant City of Glendale, such as would not be justified from any income that could be derived from such construction; that at this time and for many years prior thereto the Forest Grove Land and Water Company and its predecessors in interest, who are the original owners and subdividers of the tract of land on which plaintiff is located, owns, operates, and conducts a distributing system in said tract and that plaintiff’s said property is bounded on the east and south by the distributing line laid in the street abutting plaintiff’s said property, from which line the plaintiff could receive adequate water service;