Sierra Land & Water Co. v. Cain Irrigation Co.

California Supreme Court Sep 27, 1933 No. Docket No. Sac. 4768.Published

Before: Preston

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Holding. The court held that the plaintiff failed to state a cause of action because its long-term failure to challenge an injunction against its diversion works constituted inexcusable neglect and a lack of the diligence required to maintain a water appropriation priority. Furthermore, the court held that the second count failed because an undefined, floating water right cannot be the subject of a judicial decree.

Issues

Whether the plaintiff exercised the requisite diligence to maintain a priority of water appropriation under the Civil Code.
Whether the plaintiff's complaint sufficiently stated a cause of action for the ownership of a water right.
Whether an undefined, floating water right can be the subject of a binding court decree.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact is that plaintiff as a matter of law has been guilty of inexcusable neglect and lack of diligence”

“Diligence is of the essence of priority under the above-mentioned sections of the code.”

“An undefined floating water right could not be made the subject of a binding decree of court.”

PRESTON, J.

Plaintiff, a public utility corporation, by an original, an amended and an amendment to the amended complaint, essays to put in issue as against the claims of defendants its priority to an appropriative right in 75,000 miner’s inches of the waters of Rush Creek in Mono County. The complaint is in two counts. The first is an attempt to show a compliance with section 1410 et seq. of the Civil Code, by setting forth in detail the facts upon which it relies; the second is an attempt to plead the ultimate fact of ownership of such prior right.

The court below, having sustained demurrers to said complaint as amended, without leave to amend, gave ¡judgment for defendants. Plaintiff has appealed, supporting its appeal by the judgment-roll and a bill of exceptions. The effort of plaintiff in its first count is to come within the rule announced in the cases of

Inyo Cons. Water Co.

Jess,

161 Cal. 516 [119 Pac. 934];

Merritt

City of Los Angeles,

162 Cal. 47 [120 Pac. 1064],

We have carefully considered the record and the voluminous briefs on file. We agree with the court below that plaintiff has not stated a cause of action and that insurmountable difficulties bar the right of relief. The fact is that plaintiff as a matter of law has been guilty of inexcusable neglect and lack of diligence, as will be demonstrated by the following statement of the cause:

Plaintiff initiated its claim to these waters by a notice of appropriation posted and filed April 6, 1914. The point of intended diversion on the east bank of the stream was named. The complaint alleges that this point was at the headgate of the Rush Creek Mutual Ditch Company, and that plaintiff, within sixty days after posting said notice, made a contract with the ditch company to use its headgate, ditch and rights of way as a part of its plan to divert said water and convey it to the place of intended use.

The complaint then alleges that certain predecessors in interest of defendants began a suit in Mono County and secured a temporary injunction enjoining plaintiff, and said ditch company as well, from using these diversion

Sierra Land & Water Co. v. Cain Irrigation Co.

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PRESTON, J.

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