Nissen v. Cordua Irrigation District

SHENK, J.

This is. an appeal from a judgment of dismissal following the sustaining of a demurrer to the complaint without leave to amend. The complaint is one for damages for loss of a crop of rice resulting from the defendant’s alleged refusal to deliver irrigation water to the rice lands of the plaintiff. Briefly and in substance it is alleged that the defendant is organized and existing under the California Irrigation District Act (Stats. 1897, p. 254, and acts supplementary to and amendatory thereof); that the district had acquired a large volume of water for the irrigation of the lands within the district; that during the rice-growing season of 1925 the district had and controlled water, as well as the necessary canals, ditches, flumes, etc., more than sufficient to irrigate properly all of the land within the district including the 260 acres of land held under lease by the plaintiff, of which approximately 250 acres had been planted to rice and of which planting defendant had notice; that the plaintiff made repeated demands upon the defendant for an apportionment to his land within the district of an amount of water necessary and sufficient to irrigate the 1925 rice crop thereon; that defendant failed, refused, and neglected to deliver such water except a limited and insufficient amount thereof, but that on the contrary defendant diverted large quantities of irrigation water from the district to lands without the district, by reason whereof 140 acres of plaintiff’s rice crop was totally lost, to his damage in the sum of $25,000. A general and special demurrer was interposed to this complaint. The trial court held the special demurrer to be good and would, have permitted an amendment to cure the defects in the complaint. But the court also held that as the defendant was not liable in such an action in any event

[544]

the general demurrer must he sustained without leave to amend, on the authority of

Whiteman

v.

Anderson Cottonwood Irr. Dist.,

60 Cal. App. 234 [212 Pac. 706]. The question is therefore directly presented as to whether the district itself may be held liable for damages for the refusal of its officers and agents to furnish to a land owner in the district his proportion of the available water, having the admitted ability to furnish the same.