City of Santa Cruz v. Enright
Before: Paterson
Synopsis
Eminent Domain — Condemning Use op Water — Municipal Corporations— Constitutional Law — General Laws. — Section 1001 of the Civil Code and section 1238 of the Code of Civil Procedure providing for the acquisition of private property by “any person, without further legislative action,” through the exercise of the right of eminent domain, for the use of “canals, aqueducts, flumes, ditches, or pipes for conducting water for the use of the inhabitants of any county, incorporated city, or city and county, village, or town,” are general laws within the meaning of section 6 of article XI. of the constitution, providing that cities shall be subject to and controlled by general laws, and are applicable to municipal corporations formed before, as well as to those formed after, the adoption of the constitution of 1879.
Id.—Necessity — Distance op Supply — Nearer Waters Owned by Water Company—Instructions.—Where the evidence shows that the waters of a creek from which a water company receives its supply are insufficient in quantity to supply the wants of the inhabitants of a city to which the company furnishes the water, during the summer months, and a portion of them are also inferior in quality, and that the population of the city is steadily increasing, and that the waters of the stream sought to be condemned by the city are excellent in quality, and abundant in quantity, and of sufficient elevation, the fact that the stream sought to be taken is further from the city than the streams from which the water company take their supply, although a matter to be considered, is not controlling upon the question of necessity, and where the instructions of the court as to the power to condemn, and the necessity claimed to exist, are correct, it is not error to refuse instructions predicated controllingly upon the question of distance, and upon the power of the city to condemn the waters owned by the water company.
Id. — Water Rights — Private Lands — Riparian Ownership — Appropriation. — A riparian proprietor of private lands cannot acquire any right in the waters of the stream by mere appropriation.
Id. — Public Lands — Presumption —Burden of Proof. — Where it does not appear whether the lands through which a stream ran at the time when a riparian proprietor claims to have acquired a right by appropriation were private or public property, it will not be presumed that they were public lands, but the burden of proving that they were such lands devolves upon the claimant.
Id.—Evidence—Prescriptive Right — Notice Claiming Water— Error without Prejudice —Presumption upon Appeal. — Where the evidence showed without conflict that the defendant had acquired a prescriptive right to the use of the waters of the creek sought to be condemned, and the jury were fully and fairly instructed in reference thereto, it must be assumed, upon appeal, that the jury allowed the value of the prescriptive right, and the action of the trial court in excluding a notice which had been posted up in a conspicuous place by the defendant’s grantor at the place where the water was diverted, and which tended to show that the defendant claimed the right to divert the water adversely to all other claimants, although erroneous, is not prejudicial.
Paterson, J. This is an action to condemn the waters of Laguna Creek, a small stream in Santa Cruz County, for the purpose of supplying the wants of plaintiff and its inhabitants. The defendant Enright is the owner of a tract of land lying below the point of the ■proposed diversion, and bounded on the northwest for about three miles by the creek. The defendant Enright claims that there is neither any authority nor any necessity for the exercise of the power of eminent domain; but that if such authority exist, he is entitled to compensation for the injury he will sustain, not only as a riparian proprietor, but as a prior appropriator and owner by prescription. The jury found in favor of the plaintiff on the main issues, and assessed the defendant Enright’s compensation at eight thousand dollars, and the damages to be paid to each of the other defendants who claimed some interest in the property at one dollar.
The defendants Enright and Sylva moved for a new trial, the motion was denied, and they have appealed from the order and from the judgment.
It may be conceded, for the purposes of this decision, that the charter of the city of Santa Cruz confers no authority upon the municipal authorities to condemn water [111]for the use of the inhabitants of the city. Its warrant for the exercise of the power is found in the constitution and general laws of the state. Section 6 of article XI. of the constitution provides that “ cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, shall be subject to and controlled by general laws.” Section 1001 of the Civil Code provides that “ any person may, without further legislative action, acquire private property for any use specified in section 1238 of the Code of Civil Procedure, either by consent of the owner, or by proceedings had under the provisions of ... . the Code of Civil Procedure.” Section 1238 of the Code of Civil Procedure provides that the right of eminent domain may be exercised in behalf of the following uses, “3.....canals, aqueducts, flumes, ditches, or pipes for conducting water for the use of the inhabitants of any county, incorporated city, or city and county, village, or town.”
These provisions of the codes are “general laws,” applicable to municipal corporations which -were formed before, as well as to those which were formed after, the adoption of the constitution of 1879. (Thomason v. Ashworth, 73 Cal. 73; People v. Henshaw, 76 Cal. 446; Pasadena v. Stimson, 91 Cal 238.) In the case last cited, our chief juctice, speaking for the whole court, said: “ It follows, therefore, that under this general law, — general in the fullest and widest sense of the term, ■—■ any public or private corporation, or any natural person, may, for any of the uses defined in section 1238 of the Code of Civil Procedure, acquire private property without the consent of the owner. .... But the mode of exercising the power of eminent domain, and the conditions upon which it may be invoked, are no part of municipal organization. They are the subject of general laws, applicable to every person alike, and the legislature has no power to make arbitrary discriminations in this respect between different classes of persons.” Although the precise point to which these remarks were
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