South Yuba Water Co. v. City of Auburn

CHIPMAN, P.

This is an action to recover the agreed price for the construction of a concrete culvert at the crossing of the street known as Railroad street, over plaintiff’s canal. The cause was tried by the court and plaintiff had judgment, from which the defendant appeals on the judgment-roll.

The court found the averments of the complaint to be true and the affirmative averments of the answer to be untrue. We have, therefore, only the sufficiency of the complaint to deal with, for it constitutes the findings of the court. The sole question is, Do the findings support the judgment?

It is found that plaintiff is a duly organized corporation, owning and operating that certain ditch or canal formerly known as the Bear river and Auburn ditch and now called the South Tuba Water Company’s canal; that said canal was constructed during the years 1850 and 1851, and conveyed the waters of Bear creek from a point near Colfax, Placer county, to and past the town, now city, of Auburn, carrying waters to the westerly portion of said county and disposing of the same for mining, agricultural, irrigation and other enumerated purposes, and, ever since the years 1850 and 1851, plaintiff and its predecessors have continuously owned and used said canal and said water for said purposes; that the city of Auburn is a city of the sixth class and was so created in the year 1887; that about the year 1865 and prior to the incorporation of said city of Auburn, there was a traveled road, now called Railroad street, in said city, which said road crossed the said canal of plaintiff about where said street now crosses said canal, across which the county of Placer, by its duly constituted authorities, constructed and maintained a bridge until the incorporation of said city, since which time the said city has maintained and repaired said bridge; that, in the year 1907, the said bridge became out of repair and required rebuilding, and the said city, by its duly constituted author

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ities, advertised for bids for replacing said bridge by means of a reinforced concrete culvert on said Railroad street and across the same; that bids were presented by plaintiff and others and the work let, under proper resolution authorizing the same, to plaintiff, and upon terms and conditions set forth in a written contract, which is fully set forth in the complaint, by which‘the city agreed to pay plaintiff the sum of $660 for said work—seventy-five per cent of said sum upon the completion of the said culvert and twenty-five per cent thereof thirty-five days after said completion and acceptance, and the said city agreed “to pay the said contractor the said sum of $660 for the said work at the time and in the manner hereinbefore provided”; that “thereafter and by the month of June, 1907, plaintiff fully performed each and all of its agreements and obligations as set out in said contract . . . and the defendant accepted the same and has ever since used the same for the uses and purposes of said city of Auburn and of its inhabitants”; that “thereafter, to wit, on or about the 2nd day of September, 1907, the plaintiff duly presented to the said city board of trustees its claim against said city of Auburn, for said work done under said contract, being for the sum of six hundred and sixty dollars, due and payable and unpaid plaintiff by said city of Auburn,” for said work and pursuant to said contract and acceptance by said city; that said city “delayed and neglected from time to time to act upon said claim of plaintiff . . . until the first day of June, 1908,” and on that date rejected and refused to pay the said claim of plaintiff without any just cause or excuse; that said claim is still due and owing and unpaid, “‘since about June 1st, 1907.” The prayer is for the full amount of $660 “with legal interest thereon from the 1st day of June, 1907, and for costs of suit.”