Aliso Water Co. v. Baker

Temple, C. This appeal is from a judgment against plaintiff upon demurrer.

The action is to obtain, by condemnation, certain water rights, and a strip of land five feet wide upon a defined line.

It is alleged that plaintiff is a corporation, whose object and purpose is to take water from Sycamore creek and [269]canon, and to use and distribute the same in supplying, for domestic use and irrigation, a certain farming neighborhood, composed of land riparian to said creek; that plaintiff is the owner and in possession of certain rights in the waters of Sycamore Creek, said rights being all those rights appertaining to the riparian lands on both sides of said creek, within certain defined limits.

It is also averred that each of the defendants, except Baker, who is said to be a mortgagee of one of the other defendants, owns a tract of land, also riparian, upon both sides of said creek; that to carry out the purpose of the plaintiff to supply said farming neighborhood with water, it is necessary that plaintiff appropriate, condemn, take, and use all the waters of Sycamore Creek, excepting such quantity or portion thereof as the defendants respectively have or may have the right, as riparian owners, to use for domestic purposes, and for irrigation of their lands bordering on and riparian to said creek; that is to say, that it is necessary for plaintiff to have the right to appropriate, condemn, take, and use every right of said defendants respectively in and to all the waters of said creek, whether acquired by appropriation, adverse use and possession, or prescription, as owners of riparian lands. It avers that more water flows in the creek than is necessary for the reasonable and proper use of said defendants as riparian owners for domestic purposes, and the irrigation of said riparian lands; but plaintiff is unable to state the quantity of water which flows in said creek in excess of that which is required by said defendants for domestic purposes, and irrigation as aforesaid, or the quantity that said defendants respectively may be entitled to use as riparian owners for the purposes aforesaid.

The complaint does not show whether the “ farming neighborhood,” which it is proposed to supply with water, is inhabited, except by the use of the term, and the statement that water is to be supplied for domestic purposes. It does not appear that it is composed of more than one farm, and, in fact, since the pleading must be taken most strongly against the pleader, it must be