Arcularius v. City of Los Angeles

PLUMMER, J. This action was begun by the plaintiffs to obtain an injunction against the defendants.

After the beginning of the action and the filing of the defendants’ answer herein, two of the plaintiffs filed a motion for transfer of the action for trial from the county of Mono to some other county to be selected by the court. This motion was denied and the plaintiffs, Prank H. Arcularius and Olive C. Arcularius, appealed from the order of the superior court denying their motion for a change of venue.

The plaintiffs allege in their complaint that they are the owners and in possession of certain real property in Mono County; that they have a right to the use of the waters of Owens River and its tributaries flowing across .the property belonging to them, and pray that the defendants be enjoined from causing the pollution of streams flowing across appellants’ lands from interfering with underground waters and springs upon appellants ’ premises, and from interfering with, or diverting from their flow over the lands of the appellants the waters of Owens River, its tributaries and springs; also, from constructing any tunnel under the premises belonging to the plaintiffs, and from constructing certain roads or highways.

The defendants filed an answer denying the allegations of the plaintiffs’ complaint, and in addition thereto offered, if any of the rights of the plaintiffs had been invaded by the City of Los Angeles, or any of its officers, to make suitable compensation therefor; that if any of the waters of Owens River, belonging to the plaintiffs, had been taken by the defendants, that compensation therefor be made, and the title of the defendant city be quieted. After the filing of the answer by the defendants just referred to, the appellants filed a motion to transfer the cause of action to some county other than [367]Mono as the place for trial. The motion contained the following allegations material to be considered: “Said motion will be made and based upon the grounds that at the time of the commencement of this action Frank H. Arcularius and Olive C. Arcularius were, and they ever have been residents of the County of Mono, State of California, and in business in said county; that said City of Los Angeles is a municipal corporation situate in the County of Los Angeles, State of California; that the plaintiffs desire said action transferred.

“Said plaintiffs make this motion for change of venue under the provisions of Section 394 of the Code of Civil Procedure of the State of California. Said motion will be made upon this notice. The affidavit of McIntyre Paries, a copy of which is filed herewith, and the law applicable thereto.”