Standart v. Round Valley Water Co.

Works, J. The complaint in this case alleges, in substance, that the plaintiff is the owner and in possession of a certain mill site and a quartz-mill thereon, situate about four hundred feet below the dam known as the Round Valley Reservoir dam; that during the twenty years he and his grantors have owned and possessed the same, they have owned, possessed, and used, and the plaintiff does now own, possess, and use, a sheet-iron pipe, extending from the water-wheel in said mill to and through said reservoir dam, which pipe, during all of said time, has been, and still is, a part of said mill, and used with the same; that said pipe has been, during all of said time, and now is, the only outlet for the water stored in said reservoir; that plaintiff is, and he and his grantors have been during all of said time, the owner of the water flowing from said reservoir through said pipe to the extent of 350 inches, measured under a four-inch pressure, as a motive power with which to propel the machinery of said mill, and have used, and plaintiff now has the right to use, the same for said purpose; that the defendant claims to own said reservoir as a storage-room for water for sale, and claims to own a water ditch from North Canon, immediately through which the water so stored is distributed and sold after leaving plaintiff’s said premises, and claims some right or title in said iron pipe, and in said water as it flows through said pipe, adverse to plaintiff’s ownership and use thereof, and intends to divert said water from said pipe, and to deprive plaintiff of the use thereof as aforesaid, and that said claim is invalid.

The prayer of the complaint is, that defendant be required to set forth its right or title to said water-pipe and water; that its rights, so far as they are adverse to plaintiff, be declared invalid; and that plaintiff be quieted in his title and use in said water and pipe to the extent and for the uses and purposes set forth.

A demurrer to the complaint on the ground that the [401]same does not state facts sufficient to constitute a cause of action was sustained, and judgment rendered thereon in favor of the defendant, from which plaintiff appeals.

The only question before us is as to the sufficiency of the complaint. We see no objection to its form. We are not favored with any brief on behalf of the respondent, and are not informed of the grounds upon which the court below held it to be bad. We infer from what is said in appellant’s brief that it was held that the property mentioned in the complaint was not real estate, and therefore not the subject of an action to quiet title.