Yolo County Consolidated Water Co. v. Adamson

CHIPMAN, P. J.

This appeal is from the order of the trial court, granting the motion of defendants to change the place of trial from Yolo County to Lake County. The grounds of the motion are that all of the defendants at the commencement of the action were and now are residents of the county of Lake and the “action is for the determination of a right or interest in and to real property situated in the county of Lake, state of California, and for an injury to real property, and to prevent an alleged trespass upon real property situated in the said county of Lake.”

It appears from the complaint in the action that the plaintiff is a corporation whose principal place of business is Woodland, Yolo County, and was organized for the purpose of acquiring, selling, and delivering water and water-rights for irrigation and other purposes and to construct canals, ditches, dams, flumes, and other means of diverting water for said purposes; that Cache Creek takes its rise in Clear Lake “and flows in a southeasterly direction through the county of Yolo from which a large acreage of said county is irrigated and supplied with water by plaintiff”; that “plaintiff is the owner of certain lands, canals and ditches, together with the dams, bulkheads, abutments, levees, headgates, wiers and other improvements, connected therewith and necessary thereto; said ditches being generally known and designated as the ‘Woodland or Moore Ditch, ’ and the ‘ Adams Ditch, ’ and the ‘ Capay Ditch,’ ” through which “said ditches and canals . . . plaintiff now is and for many years last past, has been serving and supplying the farming neighborhoods under said ditches and canals with water for irrigation purposes, for hire and consideration” and that said works have cost large sums of money and “are worth the sum of $700,000 and more”; that the said creek where it passes through plaintiff’s said land at its head, “has been filled and built up by natural accretion, and by the growth of shrubs, weeds and other vegetation and by natural deposits of silt, earth and other material,” which condition operates as a barrier to the rapid flow of water through said

[495]

creek bed and prevents said waters in seasons of heavy rains “from flowing down said creek bed in large and dangerous quantities” and also causes the waters to be retained in said lake and retards the flow of water stored during the winter season and causes the same to flow down said creek during the summer months and at a later period of time than it would otherwise flow; that the demand for water for irrigation in the winter season is small, but in the summer season is great “and insufficient to supply such demand” and plaintiff is entitled to have said creek where it passes through said land at its head “remain in its natural state and condition.” It is then alleged that defendants, in September, 1911, “entered upon said lands of plaintiff adjacent to said lake and through which said lake flows upon land adjacent thereto, and have entered upon and into the bed of said creek flowing thereon, and have excavated soil, cut timber, brush and other growth and vegetation from a portion thereof, and removed the same therefrom, thereby removing the barrier and impediment to the flow of said waters, as above described” and “threaten to and will, unless restrained . . . continue to enter upon the said land and the bed of said creek” and by said acts cause large and excessive quantities of water to flow 11 down the bed of said Cache Creek, and in such quantities, and with such force as to overflow the lands, dams, embankments, abutments and wiers of said plaintiff and through the said ditches and canals of said plaintiff, greatly damaging, washing away and injuring the same, and carry down and deposit thereon great quantities of rock, earth and rubbish, and breaking said plaintiff’s ditches and depriving it of the use and profit of the operation thereof, and the sale of water therefrom,” to plaintiff’s irreparable injury and damage.