South Yuba Water & Mining Co. v. Rosa

California Supreme Court Sep 3, 1889 No. No. 12914Published

Before: Vanclief

AI Brief

AI-generated · verify before citing

Holding. The court held that a foreign corporation's failure to file articles of incorporation under Civil Code section 299 must be specially pleaded as a defense to be considered, and that said section does not apply to foreign corporations. Furthermore, the court held that a homestead claimant's riparian rights are subordinate to a prior appropriation of water on public lands.

Issues

Whether a complaint must affirmatively allege compliance with Civil Code section 299 regarding the filing of articles of incorporation.
Whether Civil Code section 299 applies to foreign corporations.
Whether a homestead claimant's riparian rights are superior to a prior appropriation of water on public lands.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Where the complaint contains no averment upon the subject, it is not a valid ground of demurrer that it does not affirmatively allege a compliance with the provisions of section 299 of the Civil Code”

“Moreover, we are of opinion that section 299 of the Civil Code does not apply to foreign corporations.”

“the riparian rights of the defendant as a homestead claimant are subject and subordinate to the prior appropriation of the waters of Little Rock Creek by the plaintiff”

Synopsis

Corporation — Filing op Copy op Articles—Pleading — Demurrer — Nonsuit—Plea in Abatement. —The failure of a corporation to comply with the requirements of section 299 of the Civil Code as to the filing of a copy of the copy of its articles of incorporation in the office of the clerk of the county where its property is situated, is not ground of general demurrer when the complaint is silent upon the subject, nor is it ground of motion for a nonsuit that the plaintiff has failed to prove such filing; but such failure can only be made available by specially pleading it in the answer as matter of abatement to the action.

Id. —Foreign Corporation. — Section 299 of the Civil Code does not by its terms apply to or include foreign corporations, but applies only to domestic corporations who have filed a copy of their articles of incorporation with the secretary of state of the state of California. There is no provision or authority in the statute by which foreign corporations are to file a copy of their articles of incorporation, with the secretary of state of this state.

Water Rights — Appropriation — Riparian Rights — United States Homestead Claim—Injunction. —The riparian rights of a homestead claimant under the laws of the United States, whose settlement upon the land is subsequent to an appropriation of the water flowing across the same in its natural channel, by the owner of a water-ditch which taps the stream below the homestead claim, are subject and subordinate to the prior appropriation of the stream by the owner of the ditch, and the homestead claimant may be enjoined from diverting the water of the stream from the ditch.

Vanclief, C. The plaintiff is a foreign corporation organized under the laws of the state of New York, and sues as the owner of a water ditch situated in Nevada [335]County, in this state, extending from Rock Creek to plaintiff’s reservoir, near Blue Tent, a distance of about four miles, to recover damages for diverting therefrom the waters of the north branch of Rock Creek, which discharges its waters into the main channel of Rock Creek above the head of plaintiff’s ditch; and also to enjoin the defendant perpetually from diverting any water from Little Rock Creek.

The plaintiff had judgment for thirty dollars damages, and a perpetual injunction, as prayed for; and the appeal is from the judgment, and from an order denying defendant’s motion for a new trial.

The findings show that the plaintiff and its grantors have owned the ditch for more than twenty-five years prior to the commencement of this action, and that Little Rock Creek has contributed to its supply of water continuously during all that time, except when interrupted by the defendant. It appears that Little Rock Creek flows in a natural channel a distance of about one thousand feet through land possessed and claimed by defendant as a homestead, under a settlement thereon made in 1883, and for which he holds the receipt of the register of the United States land-office for the fees and compensation of register and receiver for the entry of the land as a homestead, under section 2290 of the United States Revised Statutes, but has received no patent therefor. Under this title and his possession he claims the rights of a riparian owner to the waters of Little Rock Creek.

The defendant filed a general demurrer to the complaint, which was overruled, but which he contends should have been sustained, because it was not alleged that plaintiff had complied with section 299 of the Civil Code concerning the filing of a copy of the copy of its articles of incorporation in the office of the county clerk of Nevada County, in which county plaintiff’s ditch is situated; and on the trial the defendant objected to any [336]evidence until a compliance with section 299 of the Civil Code should be proved; and also at the close of evidence on the part of the plaintiff moved for a non-suit upon the same ground, which was denied.

South Yuba Water & Mining Co. v. Rosa

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief