Buschmann v. Turlock Irrigation District

PLUMMER, P. J.,

pro tem.

By this action plaintiffs sought a writ of mandate from the superior court of Stanislaus County, directing the defendants to construct certain ditches and deliver water for irrigation purposes to lands and premises described in the complaint, belonging to the plaintiffs, and situate within the Turlock Irrigation District. The matter is in this court upon appeal from the order and judgment of the trial court sustaining defendants’ demurrer to the plaintiffs’ complaint.

It appears from the pleadings that the defendant Turlock Irrigation District is a giicm-public corporation, organized under the provisions of what is popularly known as the Wright Irrigation Act; that for some time past water has been delivered to the lands belonging to the plaintiffs through a private ditch, called the Delmas ditch, the intake of which is at a point on what is called the Ceres main ditch, constructed by and belonging to the defendant Turlock Irrigation District; that the water thus furnished through the Delmas ditch is lost, in large measure, by means of seepage, and the natural porous condition of the soil traversed by said Delmas ditch before being distributed over the lands of the appellants. To remedy this defect and avoid the loss of water a writ of mandate was prayed for, directing the Turlock Irrigation District and the other defendants herein to take such action as might be necessary to furnish plaintiffs with sufficient water for the irrigation of their lands; that said water be delivered directly to, or close by, the lands belonging to the plaintiffs.

Though not stated in precise form, the relief sought is, in fact, as follows: That the Turlock Irrigation District be required to build a new branch or service ditch from its main canal; that the directors of the district be required to construct said ditch and provide the money for paying the éxpenses of such construction without any adoption of plans or previous approval by the votes of the land owners of the district. Appellants argue that authority for such an order from the court is found in the last clause of section 39 of the Wright Act, [Stats. 1887, p. 29], relating to the

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power of the board of directors of irrigation districts, which clause reads as follows: “Also sufficient to raise such amount, not exceeding two per centum of the aggregate value of the lands within the district according to the latest equalized assessment-roll thereof, as the board of directors shall determine may be needed to be raised by assessment for any of the