Wright v. County of Sonoma

ANGELLOTTI, J.

This is an appeal by plaintiff from a judgment for defendant and from an order denying his motion for a new trial, in an action to recover the sum of eighty-six hundred dollars for water taken by defendant, by one of its road commissioners, for the purpose of sprinkling a public highway, from a well bored by it in said public highway.

The plaintiff is the life tenant of the land traversed by that portion of said highway on which said well is situated, subject to such rights therein as are possessed by defendant and the public by reason of the fact that the same constitutes a public highway. Defendant took and used water for sprinkling said highway from June 10, 1903, to October 8, 1903, 120 days—and on 52 days, from May 10, 1904, to July 12, 1904. Plaintiff’s claim is based solely on the theory that there was an express contract for the payment by defendant to plaintiff of the sum of fifty dollars for each day on which water was taken by it from said well, there being no allegation in the complaint as to the reasonable value of the water taken, or any allegation of damage to plaintiff by reason of such taking. In view of the findings based on evidence without conflict, there can be no dispute as to the facts material on

[477]

the issue of express contract, and those facts completely disprove the theory of any such contract. About May 27, 1903, defendant’s road commissioner commenced the construction of said well, and, the same having been completed, commenced to take water therefrom for the purpose of sprinkling said highway, all without the consent of plaintiff. Plaintiff and others interested in the land, thereupon, on June 10, 1903, notified such road commissioner, in writing, that he was forbidden to take any water from said well, and that in case he disregarded such 'notice, the owners "hereby demand” fifty dollars per day for each and every day on which he removed water in violation of the notice, “as compensation for the taking of said water.” The well was bored and the water used for sprinkling purposes, with the knowledge of the board of supervisors of Sonoma County solely under the

bona fide

claim that the county had the lawful right to so take and use the water. On June 20, 1903, plaintiff commenced an action in the superior court of Sonoma County to obtain a decree enjoining said road commissioner from taking said water. On September 22, 1903, the superior court rendered judgment in said cause, that plaintiff take nothing by his action. An appeal was taken by plaintiff from said judgment to the supreme court, and on May 11, 1904, the supreme court rendered a decision holding that defendant had no right to take or use said water, and directing the entry of judgment by the lower court in favor of plaintiff.