Marin Cty. Water Co. v. County of Marin

McFARLAND, J.

A demurrer of defendant county of Marin to the complaint for want of jurisdiction, and an insufficiency of stated facts to constitute a cause of action, was sustained without leave to amend, and judgment rendered for said defendant. From this judgment plaintiff appeals. The material averments of the complaint, which presents a proceeding in eminent domain, are, that the plaintiff is a corporation engaged in the business of supplying the inhabitants of Marin County with pure and fresh water; that defendant county of Marin is a body corporate and a political

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division, of the state; that in order that plaintiff may exercise its public use of supplying water as aforesaid it is necessary for it to construct and maintain a dam and reservoir at a certain point, and to take certain described property for the purpose of flooding and permanently .covering the same with water by means of said dam and reservoir. It is further averred that the title in fee to said premises is in plaintiff, but that they are “subject to an easement in favor of defendant county of Marin for the uses of a highway, and that the premises sought to be taken herein are a part of the highway or road sometimes called the Fairfax and Bolinas Bay road. ’ ’ It is further averred that the public use for which the property is sought to be taken “is a more necessary public use than that to which it is now appropriated,” for certain reasons stated. And it is further averred that defendant county of Marin has refused to vacate the part of the road sought to be taken, or to fix any terms upon which it will consent to permit plaintiff to acquire or have the use thereof. The prayer is, that it may be adjudged that plaintiff have the right to take and hold the said premises for the alleged public use, upon its making compensation to be ascertained, etc.

The question presented is an important one, and we do not know of any former decision of this court in which it has arisen or been determined. After a full consideration of the subject, we have reached the conclusion that the plaintiff has the right to the judgment of condemnation prayed for, if it can prove the averments of the complaint; and that therefore the demurrer was improperly sustained.

It may be conceded that the right of a person, natural or artificial, to exercise the power of eminent domain must be found in- some statutory provision. The two provisions of law which are mainly important here are section 1237 and the first three subdivisions of section 1240 of the Code of Civil Procedure. Section 1237 is as follows: “Eminent domain is the right of the people or government to take private property for public use. This right may be exercised in the manner provided in this title.” It is contended by respondent that this definition of eminent domain confines it to private property; that this definition attaches to and qualifies all subsequent provisions; and that the property sought to be taken in the case at bar is not private property, and therefore not