City of Santa Barbara v. Gould

COOPER, C.

This action was brought to condemn the west half of the northeast quarter of section 36, township 5 north, range 27 west, S. B. M., for the alleged use of plaintiff “for the purpose of obtaining the percolating waters therein, and to obtain a watershed, and to preserve the purity of the water in said tunnel. ’ ’ Plaintiff alleged that it had ‘ ‘ excavated a tunnel on adjacent land owned by it at great expense, and is now obtaining water therefrom, and is supplying the city of Santa Barbara and its inhabitants with said water, but said supply is not adequate to the wants of said city and-people.”

[422]

Findings were filed and judgment ordered and entered in favor of plaintiff condemning the land. This appeal is from the judgment on a bill of exceptions. It is claimed by appellant the Montecito Valley Water Company, a corporation, that the findings show that it had appropriated the land in contest for a public use prior to the filing of the complaint by plaintiff. It appears from the findings that the said water company is, and has been ever since the year 1886, a corporation duly incorporated for the purpose of distributing and supplying water for the use of the inhabitants of the county of Santa Barbara and the village of Montecito, and to collect rates for the water so furnished. That the waters to be distributed are the waters of Montecito Creek and its tributaries. That said objects are a public use, and said water company ever since its organization has been and still is in charge thereof, and has supplied and is now supplying water for the use of the inhabitants of Montecito. The case was tried in the court below upon the theory—and the judge so stated during the trial—that the public use for which plaintiff proposes to take the land is a more necessary public use than that to which it had already been appropriated by said water company. The issue was thus made to depend upon the fact as to whether or not the land had, prior to the commencement of the action, been appropriated by the said water company to the public use claimed by it. The court found that said water company “because of said diminution of said stream was not. when this action was begun, devoting the water of said stream or of the said land to any public use. ’ ’ This finding is in conflict with the other findings, and cannot be held sufficient to justify the judgment. The court finds elsewhere (findings 7 and 8) “that at that time said company desired to purchase said land and was without sufficient means to do so; that.the said company had prior to that time derived its water supply in part from the waters of Cold Springs Branch, which, in its natural condition, was a stream of water flowing from the north to the south through said lands, and the acquisition of said land was of special value to said company as a means for the protection and preservation of said stream; . . . that prior to the commencement of this action and at the time thereof, said land was held in trust for the use and benefit of