Brewer v. Railroad Commission

RICHARDS, J.,

pro tem.

This proceeding is, in substance, identical with the proceeding entitled

Brewer

v.

Railroad Commission, ante,

p. 60 [210 Pac. 511]. The petition filed in the former proceeding on October 22, 1920, was refiled on November 15, 1920, for the purpose of obviating an objection based on the ground that the petition for rehearing in one of the proceedings before the Railroad Commission had not been finally acted on by the commission at the time said former petition was filed. Said petition was later denied and no point was made in the former proceeding that the applica

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tion therein had been prematurely filed. Our decision, this day filed, in said former proceeding therefore disregarded that objection and is applicable to all points presented in the instant proceeding with the exception of the question raised by the separate petition of the petitioners Strobeek and Legge, who, while joining in the main petition, add thereto an additional claim for relief based upon averments peculiar to their alleged water right agreement. These averments are, in brief, that said petitioners Strobeek and Legge are successors in interest of certain contract holders named C. H. Souther and Souther & Crosby, who, in the year 1890, had acquired certain lands in the “S” subdivision of the El Cajon Rancho and who in that year had received said water rights agreements from the San Diego Flume Company for the service of water upon their said lands in specific amounts per acre and at a specified rate. These water rights agreements would be subject to the same conditions held in our former opinion, this day filed, to affect water rights agreements of all other petitioners but for the added averments of said Strobeek and Legge to the effect that in the year 1901, in an action brought by said Souther & Crosby in the district court of the United States for the southern district of California against the San Diego Flume Company to cancel said contracts upon the ground that the said flume company had not lived up to their terms, the flume company had filed a cross-bill for the recovery of the contract price of the water to be furnished the plaintiffs under said contracts and that a judgment had been rendered in favor of the cross-complainants upholding said contracts, which judgment had been affirmed on appeal by the circuit court of appeals in the case of