Lower Kings River Water Ditch Co. v. Kings River & Fresno Canal Co.

Myrick, J.: This is an appeal from an order denying defendant’s motion for change of venue. The motion was based on the ground that the action was not brought in the proper county, and was resisted on the ground that the action was brought in the proper county, and that it should be retained for the convenience of witnesses. The action was commenced in Tulare County, and the defendant, a corporation, has its principal and only place of business in Fresno County.

The plaintiff in its complaint alleges that it is and has been ever since October, 1873, the owner of a certain ditch used in conveying water from King’s River and selling the same for agricultural purposes, and of the right to divert and carry water through the same; and that in 1875 defendant constructed a ditch above the mouth of plaintiff’s ditch and diverted from said river nearly all the water flowing therein, to the damage of plaintiff and of its water right.

It appears from the affidavits in the case that the points of diversion of the water from the river by both plaintiff and defendant are in Fresno County, and that plaintiff’s ditch is about twenty miles in length, about eighteen miles thereof being in Tulare County, the remainder in Fresno County, and [410]that the damage sustained by plaintiff by reason of the acts of defendant has been sustained by plaintiff and committed by defendant upon property wholly within Tulare County.

The Court below denied the motion; but upon what ground the denial was based, does not appear. We think the order denying the motion was correct, upon the ground that the action was properly brought in Tulare County. (C. C. P., 392.) Watercourses are either natural or artificial. Plaintiff’s ditch was an artificial watercourse. “A watercourse consists of bed, banks and water.” (Angell on Watercourses, Sec. 4.) The right of plaintiff, as stated in its complaint, to have the water flow in the river to the head of its ditch, is an incorporeal hereditament, appertaining to its watercourse. Granting that plaintiff does not own the corpus of the water until it shall enter its ditch, yet the right to have it flow into the ditch appertains to the ditch. Real property consists of land, that which is affixed to land, and that which is incidental or appurtenant to land. (Civil Code, 658.) If the watercourse, consisting of the bed and banks of the trench, and of the water therein, be real property, the right' to have water flow to it is incidental and appurtenant thereto.