Emigrant Ditch Co. v. Webber

Henshaw, J. Appeal from the judgment under a plea in abatement.

Plaintiff averred its incorporation under the laws of the state for the purposes of building, owning, holding, obtaining, and selling ditches, canals, flumes, rights of way, water and water rights, reservoirs, headgates, etc., and to operate the same. It then averred its acquirement of certain valuable water rights in Tulare county, its construction and ownership of canals, ditches, etc., by which it conveyed water from Cole slough, in Tulare county, through that county and into Fresno county. It alleged that the purposes of diversion are for the dis[90]tribution and selling and renting of the water to the inhabitants of the two counties, and for supplying farming neighborhoods therein with the water for farming, irrigation, domestic, and other useful purposes; and it further averred that the water is used for these purposes.

Being unable to acquire by purchase the necessary rights for extending its ditches, etc., over the land of defendant, plaintiff begins these proceedings to condemn the same. (Const., art. XIV, sec. 1; Code Civ. Proc., sec. 1238.)

Defendant traversed all the material allegations of the complaint, and then, in abatement, pleaded a noncompliance by plaintiff with section 299 of the Civil Code. This plea was first heard and determined by the court upon the consent of the parties, and, judgment, thereon passing in favor of defendant, plaintiff prosecutes its appeal.

Plaintiff was incorporated in the county of Tulare and had not filed a certified copy of the copy of its articles of incorporation in the county of Fresno. Yet, as appears by its complaint, it did at the time of the commencement of the action, and had for many years prior thereto, owned ditches, canals, water, etc., in that county; and it is to enable it to extend its operations of distribution, rental, and sale of the water that the action is prosecuted.

The arguments in support of the judgment are two: 1. That plaintiff cannot maintain this action to acquire and hold the right sought to be condemned, unless as to that property it has filed a copy of its articles of incorporation before the commencement of the action; 2. That the action, from its nature and under the averments of the complaint, necessarily involves the determination of the ownership of and title to other property situated in the county of Fresno and claimed by plaintiff as its own. To this extent, therefore, the action is “ in relation to” that property and cannot be maintained.