Tulare Irrigation District v. Collins

ITENSHAW, J.

The plaintiff, Tulare Irrigation District,, is a public corporation organized under the act of the legislature, approved March 7,1887, generally known as the Wright. Act [Stats. 1887, p. 29], The other parties plaintiff are members of the board of directors of the irrigation district and owners of land within its territorial limits. In 1894 oneMosier recovered a judgment against the district for damages-suffered by him through the negligence of the district in flooding his land. The judgment was never satisfied, but was

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kept in force by subsequent actions thereon. In 1896 he caused execution to issue on his judgment, directing the sheriff to levy upon the personal property of the district, and, failing to find sufficient thereof, then to levy upon the real property of the district. This execution was placed in the hands of the defendant Collins for service, and he levied upon certain lands owned by the district and gave notice of sale. This action was thereupon brought to restrain him from making such sale. The court found the facts as above recited, and additionally found that the lands sought to be sold, though owned by the district, were not within the plan adopted by the district as its system and scheme of irrigation j that they were not a part of the canal system, of the storage reservoir system or of any other work or works for the irrigation of the land, for the completion and operation of which system bonds had been sold; that after the receipt of moneys from the sale of bonds, the district did modify its plan and devoted part of the moneys so received to the acquisition of the land in controversy, contemplating its use as a reservoir, but that the district failed to acquire other lands necessary for the perfection of this reservoir site, and finally abandoned this branch of its scheme and acquired other lands, waters and water-rights. It finds the lands to be wholly unnecessary te and without the irrigation plans of the district, and to be in their character agricultural and grazing lands; finds that, the bonds of the district have been fully paid, that the district has no indebtedness other than this judgment, which it. has never paid or offered to pay. Upon these findings it refused to restrain the. defendant from proceeding with tne sale.

That upon such findings it was the duty of the district to pay this judgment may not be questioned. As little may it be questioned that the judgment creditor should have the right, by appropriate method, to compel the payment of his judgment. But here we are confronted with the single proposition whether or not an execution, levy and sale of certain of the lands of the district is a lawful method to accomplish this end.