Felton Water Co. v. Superior Court

CASHIN, J.

An application for a writ of prohibition to arrest further proceedings by the respondent court on an order to show cause why petitioner should not be adjudged in contempt of court for failure to comply with a judgment entered therein.

[3]

Petitioner is a corporation organized for the purpose of supplying water to the inhabitants of the town of Felton and its vicinity. It alleges the right to divert for that purpose the waters of Limestone brook in Santa Cruz County to the extent of 86,000 gallons per day; that in the exercise of its right the waters of the stream to the extent claimed have been continuously diverted since the month of June, 1925, and have been dedicated to and impressed with a public use. These averments were denied by respondents, and no evidence in support of the right claimed or of the facts alleged was adduced. It is further averred that petitioner in August, 1926, commenced an action in respondent court against the Forest Lakes Mutual Water Company, Seminary Avenue Land Company, corporations; George Fetherston and others to condemn as against the lands of defendants the right to divert from this stream 150,000 gallons of water daily, including the 86,000 gallons mentioned above, and that the action is now pending; that in an action in the same court, entitled

“Forest Lakes Mutual Water Company and Seminary Avenue Land Company, Corporations, Plaintiffs,

v.

Semita Cruz Lemd Title Compcmy, a Corporation, George Fetherston et ad., Defendants,”

numbered 9954, in which action petitioner herein was not joined as a party, a judgment was entered enjoining the defendants and their agents from diverting the waters of Limestone brook; that subsequently in the same action an order to show cause was issued by respondents and served on petitioner, requiring it to show cause why it should not be punished for contempt of court for failing to comply with the injunction. Petitioner contends that not having been joined as a party it was not bound by the judgment, and that respondents are without jurisdiction to adjudge petitioner guilty of contempt.

It appears that plaintiffs in the action last mentioned, which was filed on June 8, 1925, sought to quiet their title to the waters of the stream and to restrain the defendant from diverting them. The defendants answered, and upon the issues the court found that plaintiffs were the owners as against defendants and entitled to the use and benefit of all the waters naturally flowing therein within the limits of the lands owned by plaintiff Seminary Avenue Land Company and that, contrary to the claim of defendants, no