Inyo Consol. Water Co. v. Jess

SHAW, J.

The court below sustained a general demurrer to the. second amended complaint. Plaintiff refused to amend further. Thereupon judgment was given for defendants. Plaintiff appeals.

The first count of the complaint purports to allege a cause of action, under section 738 of the Code of Civil Procedure, to determine the alleged conflicting claims of the plaintiff and defendants, respectively, to the right to use the waters of Cottonwood Creek, in Inyo County, and to the right to divert such waters for use. The complaint alleges that the city of Los Angeles has a prior right to divert and use 180 miner’s inches of said waters. The alleged conflicting claims do not relate to that water, but solely to the excess of the stream above that quantity. It appears from the briefs that the demurrer to this count was sustained upon the theory that it does not show that the plaintiff owns or possesses any subsisting interest in, or right to, the water or the use thereof. This constitutes the question to be determined.

The plaintiff claims its right under and by virtue of five notices of appropriation posted and recorded by George Chaffey, as provided in section 1416 of the Civil Code. Plaintiff has succeeded to Chaffey’s rights. Two of the notices were

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posted on June 24, 1905, the other three on July 31, 1905. The notices state, and the fact is, that the places of intended diversion, and part of the route of the conduit to be constructed to convey it to the place of use, are and then were within the Sierra Forest Reserve of the United States. No diversion works or dams had been built or begun in pursuance of the notices, or either of them, at the time the action was commenced, which was on July 16, 1907. In excuse for this delay the plaintiff relies on the extensions of time to begin that work given by section 1422 of the Civil Code, and by the amendment of March 21, 1907, to said section 14.16. The amendment took effect on May 20,1907. (Stats. 1907, p. 780.)

Section 1416, as it stood prior to 1907, provides that a claimant must begin the diversion works within sixty days after the notice is posted and diligently pursue the same to completion. There are certain exceptions not necessary here to notice. By section 1419 a failure to comply with this requirement forfeits claimant’s right, as against a subsequent claimant who does comply. Section 1422, in effect, is that if the fact is, and the notice so states, that the proposed place of diversion or any part of the diverting canal is within a forest reserve or other United States government reservation of public land, the claimant may commence the diversion works within sixty days after he shall have received a grant of license from the proper public officers to occupy and use such reserved lands for that purpose, provided that, within sixty days after the posting of the notice of appropriation, he shall have begun the necessary surveys required to precede the application for such license, and shall have diligently prosecuted such surveys to completion, and, upon such completion, shall have also applied to the proper officer for such license and prosecuted such application with reasonable diligence. Facts are alleged showing that the provisions of this section have been fully complied with, and that the applications for said licenses or grants of authority to occupy and use said reserved lands, are now being considered by the officers of the United States authorized to make such grants, but that they have not yet been determined, and, consequently, that plaintiff is unable to proceed with said diversion works.