Opinion
Civ. No. 1702.
November 9, 1915.
APPEAL from a judgment of the Superior Court of Monterey County and from an order denying a new trial. B. V. Sargent, Judge.
The facts are stated in the opinion of the court.
Daugherty Lacey, for Appellant.
Wyckoff Gardner, for Respondents.
This is an appeal from a judgment in favor of the plaintiffs, and from an order denying a new trial, in a proceeding instituted to obtain the issuance of a writ of mandate.
The facts of the case are in the main similar to those considered by this court in the case of Margaret Jane Beatty v. Clark Colony Water Co. (No. 1701), ante, p. 745, [ 153 P. 989], in which an opinion has this day been filed; and the conclusions of the court as to the law of the case are also the same. The appellant in this case urges that the cases differ in the respect that the plaintiff, James Beatty, herein in his demand for water only offered to pay a portion of his assessment corresponding to the irrigable acreage of his lot, instead of its entire acreage as his contract requires. The record does not sustain this contention. The final demand of the plaintiff herein makes no reference to his assessment, and was in fact served upon the defendant after the whole of plaintiff's said assessment had been paid.
The attention of the court has been called by the briefs of counsel to the fact that lot 234 of the Clark Colony tract was erroneously included in the terms of the judgment, and that the same should be modified by the elimination of said lot. Otherwise, and for the reasons stated in the case of Beatty v. Clark Colony Water Co. (No. 1701), ante, p. 745, [ 153 P. 989], we are of the opinion that the judgment appealed from should be affirmed.
It is therefore ordered that the said judgment be modified by striking therefrom all reference to lot 234 of said tract, and as thus modified the judgment appealed from, and also the order denying a new trial, be affirmed.
Lennon, P. J., and Kerrigan, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on December 9, 1915, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 6, 1916.