Stone v. Imperial Water Co.

SHAW, J.

The court below sustained a demurrer to the plaintiff’s second amended complaint and thereupon gave judgment for the defendant, from which the plaintiff appeals.

The action was begun by the filing of the original complaint on April 21, 1909. Thereafter, by leave of court, the plaintiff, on April 11, 1913, filed the said second amended complaint. The court below sustained the demurrer to the second amended complaint on the ground that the causes of action alleged in the original complaint and in the said second amended complaint were each causes of action for trespass on real property; that the real property described as having been injured by the trespass in the original complaint and the amendments thereto was a different tract of land from that on which the injury was alleged to have occurred in the second amended complaint, and that the latter pleading set forth a new cause of action which accrued more than three years before the date of the filing thereof, and was, therefore, barred by the statute of limitations. (Code Civ. Proc., sec. 338.) It bases its ruling on the decision in the case of

Atkinson

v.

Amador etc. Canal Co.,

53 Cal. 102.

We think the court below mistook the nature of the respective pleadings, and that the cause of action stated in the second amended complaint was substantially identical with that set forth in the original complaint.

The original complaint alleged that the plaintiff was the owner of two hundred acres of land described as the south half of the northwest quarter of section 13, the west half of the northeast quarter, and the southeast quarter of the northeast quarter of section 14, all in township 15 south, range 14 east; that the defendant was a mutual water corporation organized to supply and distribute water to its stockholders

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for use upon lands owned by them respectively; that, for that purpose, it had constructed a system of waterworks and was distributing water therein to its stockholders and had sufficient water in its control for that purpose; that the plaintiff was the owner of a certificate of stock issued by said defendant for 160 shares of its capital stock, which recited on its face that the owner thereof was entitled to the flow and use of 640 acre-feet of water per annum to be used upon the above-described land, and that the plaintiff thereby was entitled to demand and receive said quantity of water for use upon said land; that on February 12, 1909, the defendant refused, and has ever since refused, to deliver such water to the plaintiff, except upon condition that the plaintiff would specify the particular 160 acres of said land to which he would thereafter confine the use of said water, or would buy forty more shares of the capital stock of the defendant corporation; that, under the provisions of the contract between the plaintiff and defendant, the plaintiff was entitled to receive from the defendant enough water at one time for the irrigation of 160 acres of land, and that he was entitled to use said water upon any portion of said land owned by him, provided that he did not irrigate more than 160 acres at any one run; that the defendant asserts and claims that it was under no obligation to deliver any water to any portion of said land until the plaintiff designated the particular 160 acres thereof to which he would confine the use of the water so delivered. The original complaint also alleges that the defendant, upon the demand made on February 12, 1909, did deliver water for use on all of said land described except forty acres thereof described as the southeast quarter of the northeast quarter of section 14. The second amended complaint contained the same allegations as the original complaint, except that it alleged that the forty acres upon which the water was not allowed to be used, in pursuance of the demand of February 12, 1909, was the