San Francisco v. Alameda Water Co.

By the Court, Sprague, J. : The defendant appellant is a corporation organized June 28th, 1865, under the general Act for the incorporation of water companies, passed April 22, 1858, for the purpose, as declared in its articles or certificate of incorporation, of furnishing pure fresh water to the City and County of San Francisco, to the City of Oakland, and to the towns in the County of Alameda, and to the inhabitants thereof, from sources of supply in the County of Alameda, and from other available sources; and respondent is a corporation organized under the same Act, June 3d, 1865, with the declared purpose and object of, by means of acqueducts and pipes conducting and conveying the waters of the creek or river running through a portion of Alameda County, and emptying into the bay of San Francisco, commonly known as Alameda Creek, and its tributaries, into the City and County of San Francisco, and to distribute said waters through the streets and buildings of said city and county, and to sell the same to the inhabitants thereof. Respondent, immediately after its certificate of incorporation had been filed, containing a declaration of its objects and purposes, to wit: between the 6th and 20th June, 1865, and, as is alleged, in pursuance of such object and purpose, purchased and entered into possession of one hundred and sixty acres of land in Alameda Canon, in and upon said Alameda Creek, and erected dams thereon in and across said creek as the initiative of its contemplated works for diverting, conveying and appropriating all the waters of said creek above said dams. Thereafter, on the 24th of June, 1865, and while respondent' was so in the actual possession of its lands and dams thereon" constructed as aforesaid, and while it was engaged in the construction of other works necessary to the complete appropriation of the waters of said creek to the purposes and uses of the corporation, appellant instituted proceedings before the County Judge and County Court of Alameda County against respondent and various other parties made defendants [643]therein, to condemn to its use and purposes all the waters of said Alameda Creek, and certain lands along the bed and margin of the same, extending through and over the lands and works of respondent. After having been served with notice of the pendency of these proceedings, respondent commenced an action in the District Court against appellant to restrain and perpetually enjoin the further prosecution of its proceedings in the County Court or before the County Judge of Alameda County, and from taking any proceedings to obtain a condemnation or appropriation, purchase or possession of the waters of Alameda Creek, or lands of respondent located in and thereon, as against respondent, and to obtain a decree affirming and quieting respondent’s title and right thereto as against appellant. To the complaint of respondent in this behalf, appellant answered, admitting substantially the facts as alleged in the complaint, but denying specially the allegations of fraud, and denying plaintiff’s alleged appropriation of the waters of Alameda Creek, or its prior right to such waters as against defendant, etc. The cause was submitted to the Court on complaint and answer and affidavits in behalf of defendant, whereupon a decree was made and entered by the Court perpetually’ enjoining appellant’s proceedings to obtain judicial condemnation of the waters of Alameda Creek to its uses. From which order and decree comes this appeal.