Lower Kings River Reclamation District No. 531 v. Phillips

VANCLIEF, C. The plaintiff is a corporation purporting to have been organized under provisions of Political Code, section 3446 et seq., for the reclamation of swamp and overflowed lands situate in the counties of Fresno and Tulare, the proceedings for the formation of which were initiated by petition to the board of supervisors of the county of Fresno. The [777]object of this action is to recover from defendant an assessment of $1,098.18, levied upon a tract (two hundred and sixty-seven acres) of his land situate in the county of Tulare, where this action was tried. The complaint is in the ordinary form, specially alleging all facts necessary to show that the district was duly organized, that the assessment was properly levied, and that defendant had refused to pay the assessment ; but was not verified. The answer of the defendant admits that he is the owner of the land alleged to have been assessed to him, but denies all other allegations of the complaint. It then alleges, substantially, the following further defenses: (1) That the lands assessed to him are not, and never have been, swamp or overflowed lands, but always have been high and dry lands originally owned by the government of the United States and never granted to the state of California ; and that defendant’s grantor purchased said land directly from the government of the United States as not being swamp or overflowed lands, but duly segregated therefrom by the government surveys. (2) That the commissioners appointed to view and assess said lands were not disinterested persons; that one of them, P. A. Blakely, was interested, and therefore disqualified to act as such commissioner, because he was secretary of the hoard of trustees of plaintiff under a salary at the time he was appointed, and during all the time he acted as such commissioner. (3) That the commissioners did not view the lands of defendant, and did not assess them in proportion to the whole expense of the works and to the benefits resulting from such works; but, on the contrary, arbitrarily assessed the lands of the defendant without regard to any benefit to them resulting from said works; and that said works do not and will not benefit defendant’s lands in any form, or to any extent whatever. Other defenses, more or less technical, were pleaded, but need not be considered. While the court found that the district was duly organized, it found for the defendant upon all other material issues, and thereupon rendered judgment in favor of the defendant.

The plaintiff has appealed from the judgment and from an order denying its motion for a new trial. On the appeal from the order counsel for appellant contends that the court erred in matters of law, and that the evidence is insufficient to justify the findings of fact. The motion for new trial was made on a statement of the case, which contains only the following