Opinion
Hearing Granted by Supreme Court June 27, 1929
Appeal from Superior Court, Orange County; M.W. Conkling, Judge.
Action by the City of San Diego against the Cuyamaca Water Company, a corporation, and others, in which the La Mesa, Lemon Grove & Spring Valley Irrigation District and others intervened. From a part of the judgment rendered and an order granting plaintiff’s motion for new trial of part of the case, defendants and interveners appeal. Appellants’ motion to take additional evidence denied, order granting new trial affirmed, and portion of judgment appealed from reversed.
COUNSEL
Crouch & Sanders and Sweet, Stearns & Forward, all of San Diego, for appellants.
Shelly J. Higgins, City Atty., and Arthur F.H. Wright, both of San Diego, and Hunsaker, Britt & Cosgrove, of Los Angeles, for respondent.
OPINION
CONREY, P.J.
The defendants and interveners have appealed from that portion of the judgment "which adjudges that the plaintiff is entitled to condemn the lands described in its complaint as amended, subject to the reservations and restrictions contained therein and the further restrictions in the findings of fact and conclusions of law specified"; and also appeal from the order granting plaintiff’s motion for a new trial of that portion of the case decided by the jury and setting aside the verdict of the jury heretofore rendered in said action. A more detailed description of the case and of the proceedings leading up to said judgment and order will be found in the decision of this court wherein we denied a motion to dismiss the appeal from part of the judgment. City of San Diego v. Cuyamaca Water Co. et al., 80 Cal.App. 599, 251 P. 341.
In considering these appeals we shall first dispose of the questions relating to the order granting a new trial. The verdict of the jury determined that the value of the property sought to be condemned was, at the date of the trial, $600,000; that the damages accruing to the remaining portion of the entire parcel, to wit, the 130 acres lying west of the 190 acres sought to be taken, of which the property taken is a part, by reason of its severance from the land condemned and the construction of the improvement in the manner proposed by the plaintiff, is the sum of $2,000; and found that the portion of the entire parcel not sought to be condemned will be benefited by the construction of the improvement proposed by the plaintiff in the sum of $3,000. Upon the motion for a new trial as submitted, the court made its order as follows: "The verdict of the jury herein is vacated and a new trial is granted to the issues heretofore submitted to the jury only, and upon all the grounds specified in plaintiff’s notice of intention to move for new trial." The grounds of the motion were: (1) Irregularity of the proceedings of the adverse parties, to wit, the defendants, by and through their attorneys, by which the plaintiff was prevented from having a fair trial; (2) an excessive verdict, appearing to have been given under the influence of passion and prejudice; (3) insufficiency of the evidence to justify the verdict of the jury, and that said verdict is against law; (4) errors in law occurring at the trial and excepted to by the plaintiff. The motion was based upon the minutes of the court, and upon affidavits.
The case came on for trial on the 15th day of June, 1925, before the superior court of the county of Orange, to which court the cause had been transferred from the superior court of San Diego county. A jury having been duly impaneled and sworn, the jurors were excused until the 22d day of June, and thereafter until the 30th day of June, and during their absence the court proceeded with the trial of the issues which were to be tried without a jury, including the issue relating to the existence of any necessity that the land sought to be condemned be taken by the city for the purposes alleged in its complaint. Upon the return of the jury into court on June 30th the trial proceeded before the jury for the purpose of determining the issues involving the value of the property sought to be condemned, and the damages which would accrue to the remaining portion of the entire parcel of which the property taken is a part, by reason of its severance from the land condemned and the construction of the improvement in the manner proposed by the plaintiff. The verdict of the jury was received and entered on the 9th day of August, 1925, and thereafter on the 22d day of August, 1925, the findings of fact and conclusions of law were signed and filed. Subsequently such proceedings were had that the motion for a new trial was granted as heretofore stated.
The trial court held, in effect, that the evidence was insufficient to justify the verdict; and more particularly that the verdict was so excessive that it appeared to have been given under the influence of passion and prejudice.
Insufficiency of the evidence, before it will justify a court of appeal in refusing to accept and follow a finding of fact, must amount to a complete absence of any substantial evidence in support of the finding. A common statement of the rule on appeal is that if the evidence is conflicting, the finding will not be disturbed. But it is not so with a trial court in passing upon a motion for a new trial. The trial judge should not grant a new trial unless he is clearly satisfied that the verdict or other decision is wrong. "But in considering the question upon the motion he must act upon his own judgment as to the effect of the evidence. The parties are entitled to the judgment of the jury in rendering a verdict, in the first instance; but upon a motion for a new trial they are equally entitled to the independent judgment of the judge as to whether such verdict is supported by the evidence." Green v. Soule, 145 Cal. 96, 103, 78 P. 337, 340.
In the case at bar there was a wide diversity of opinion of witnesses concerning the value of the land sought to be taken. The value stated in the verdict, though less than that shown by the testimony of some witnesses, is many times the value given by other witnesses. Counsel for defendants were deeply dissatisfied with the announcement of the intention of the court to decide that the right to condemn the land had been established. To such decision they had the right of exception, and the right to have the matter reviewed upon appeal, but upon that issue they had no right of appeal to the jury. Nevertheless, on numerous occasions, and apparently with a studied intention, they expressed this dissatisfaction in the presence of the jury, and endeavored to emphasize and impress upon the minds of the jurors the fact that the land was being taken away from the defendants against the will and contrary to the desire of the defendants. If this over-pressed insistence of the defendants that the court was erroneously permitting their land to be taken away from them caused the jury to increase the amount of the compensation award and to raise it above the value which normally would have resulted from the testimony of the witnesses, this easily might have produced an excessive verdict. For the standard of measurement of value of the land about to be taken did not in any way depend upon the fact that the defendants were objecting to the condemnation. The plaintiff was entitled to have the actual market value established in accordance with law, unaffected by any belief or suggestion that the property was being wrongfully condemned and taken. It is apparent that the court in ruling on the motion for a new trial had reached the conclusion that the jurors, in arriving at the amount of compensation given by their verdict, had improperly allowed themselves to be influenced by these contentions of the defendants, and that the verdict so obtained was excessive. We are of the opinion that the order granting a new trial of the issues tried by jury should be affirmed.
The condition of the record in relation to the judgment and the appeal therefrom has been set forth in our decision of the motion to dismiss the appeal from part of the judgment. City of San Diego v. Cuyamaca Water Co. et al., 80 Cal.App. 599, 251 P. 341. This appeal is from "that certain portion of the judgment *** which adjudges that the plaintiff is entitled to condemn the lands described in its complaint as amended, subject to the reservations and restrictions contained therein and the further restrictions in the findings of fact and conclusions of law specified."
By its complaint, filed on the 20th day of May, 1924, plaintiff stated certain facts concerning its existence and powers as a municipal corporation. The complaint then alleged the due enactment of an ordinance whereby the city council determined and declared that the public interest, convenience and necessity of the city of San Diego and the inhabitants thereof, for public use and for the impounding, conserving, and delivering of water to said city for municipal purposes, required the construction of a dam and reservoir on, over, and across certain lands in the county of San Diego; that by said ordinance the council further determined and declared that the taking and acquiring by the city of the lands, property, and rights described in the ordinance is deemed necessary for the acquisition and completion of additional water impounding and conserving facilities to be used for the purpose of impounding, conserving, and delivering water to the city of San Diego and the inhabitants thereof for municipal purposes, etc. The ordinance characterized the interest to be acquired in the land sought to be taken as being "the fee simple of the following described lands, to be used for the purpose of constructing and maintaining a dam and reservoir thereon." By said ordinance the city attorney was instructed to prosecute this action for the purpose of condemning and acquiring the property and rights demanded pursuant to said ordinance. The complaint, following the terms of the ordinance, alleged that it was necessary to condemn and acquire a fee simple in the described property, "for the use of said city in constructing and maintaining thereon a dam and reservoir."
On June 27, 1925, the plaintiff filed an amendment to its complaint, whereby its demand for condemnation of the fee simple of the described property sought to be taken was modified by providing that there should be reserved to the defendants the easement and right to conduct over and across said land by means of the flume or conduit now located thereon (giving by description the location of the strip of land on which said flume is located) any water which said defendants or either or any of them may now or hereafter be entitled to conduct across said land, together with the right to enlarge and repair said flume or conduit, or to relocate the same in a manner not inconsistent with the use of said land by plaintiff for reservoir purposes; reserving further to said defendants the right to conduct, carry, and have flow through, under, and across and beyond said land any water which defendants now own or have the right to carry, conduct, or have carried and conducted through, under, and across said land; reserving also to said defendants the right to withdraw and take from said land by pumps or otherwise any water which defendants or either of them now have the right to withdraw and take from said land; reserving also to said defendants the right to store upon said land any water which said defendants or either or any of them are now entitled to store thereon, and which said defendants or either or any of them might now or hereafter store upon said property without using or flooding any land of the plaintiff; further reserving to said defendants the right of access, etc., for the purposes of said reservations.
By further amendment on July 1, 1925, the plaintiff modified its demand by providing that in the enjoyment of the common use of said lands herein sought to be condemned, the plaintiff shall not be entitled to construct improvements thereon in a manner which shall flood said land to a height in excess of 150 feet above the level of the stream bed located upon said lands.
The case was tried upon the complaint as so amended, and a second amended answer of defendants and interveners filed July 9, 1925. It may be noted here that the trial commenced on June 15, 1925, and it thus appears that the amendments to the complaint were filed during the period when the issue concerning the right of the plaintiff to take said property was being tried by the court in the absence of the jury, and prior to the introduction of any evidence before the jury. The answer denied many of the allegations of the complaint; denied the necessity that the city of San Diego acquire a fee simple or any other right or estate in the property demanded, and denied the right of the city to take said property at all. The answer further denied the right of the plaintiff to take the property in fee simple and at the same time reserve to the defendants the rights proposed to be reserved, or to limit the rights of the defendants in any way by means of such reservations.
The defendants further by their answers set forth facts showing that defendant Cuyamaca Water Company and its predecessors in interest have been, and that said defendant now is, operating a public utility, and engaged in the conservation, impounding, and distribution of water to public and private consumers, including incorporated cities and their inhabitants, and to other territories, for domestic and irrigation purposes. The defendants alleged that the value of the property sought to be taken is the sum of $1,000,000, and they further alleged their ownership of certain other lands, waters, water rights, and water distribution properties, alleged to be of certain stated values, and which would be damaged in certain stated large sums as a result of the condemnation and taking of the property demanded by the plaintiff. It was alleged that the property sought to be taken is an integral part of the water system owned and operated by the defendants, appropriated by them to the use and actually used in conservation and distribution of water, as before stated; and that said water system will, by reason of the condemnation herein, be greatly damaged in a sum not less than $1,000,000.
It was further alleged in the answer that on April 5, 1924, the defendant Cuyamaca Water Company, a copartnership, executed to intervener irrigation district an option in writing for the purchase of all of the property of the water company, including the land described in the complaint; that said district has complied with all of the terms and conditions of said option, and the said option has thereby now become a contract of purchase and sale between the water company and the district. It was further alleged that the land sought to be taken constitutes a large underground basin or reservoir capable of developing by means of a pumping plant installed thereon, large quantities of water; that prior to the year 1916 there had been installed by said company on said land a pumping plant and water was pumped from said underground reservoir situated on said land and used and supplied for the public purposes heretofore stated. The history of said pumping plant and its connected uses down to the time of the filing of said answer was set forth at length in the answer, and it was alleged that should said lands be acquired by the city of San Diego the district would thereby be deprived of additional water which could be developed by said pumping plant and put to public use. The answer further set forth the ownership of certain lands by the irrigation district within the watershed of the San Diego river, and riparian thereto, which were acquired by the district for the purposes of a pumping plant; and that by the building of the dam sought to be constructed by the plaintiff the flow of water to said lands of the district will be absolutely cut off and said lands will be deprived of all water whatsoever. Facts were stated at length showing how the supply of water in the sands on the district’s said lands is replenished from time to time from the surface and underground flow of the river, and how the supply thus obtained will be destroyed by the proposed dam, and the district be damaged thereby.
The foregoing statements are a brief summary of what seem to be the chief elements of the answer, which sets forth said matters at great length.
The court by its findings of fact affirmed the right and necessity of the city to acquire the demanded tract of land, subject to the reservations and restrictions set forth in the findings, which are the reservations and restrictions to which we have referred in describing the complaint as amended. The court found that the lands to be taken, amounting to 190 acres, are a part of a larger tract amounting to 320 acres; and that no other land owned by the defendants, or any of them, is contiguous to said 320-acre parcel. The findings of fact concerning the defendants and their several properties, and concerning the development and distribution of water by them, are too extensive for convenient repetition here, further than may be required in discussion of the questions presented for decision.
The first proposition relied upon by appellants is that at the time this action was commenced the property sought to be condemned was already appropriated to the use of various cities and towns other than the plaintiff, and was being used for the public purposes for which it had been so appropriated; and that for this reason the plaintiff has no right to take the property by condemnation. It is the law that "property appropriated to the use of any county, city and county, incorporated city or town or municipal water district, may not be taken by any other county, city and county, incorporated city or town, or municipal water district, while such property is so appropriated and used for the public purposes for which it has been so appropriated." Code Civ.Proc. § 1240, subd. 4, and section 1241, subd. 3.
The San Diego river is a stream rising in the Cuyamaca Mountains, northeast of the city of San Diego, and flowing down in a general southwesterly direction some 65 miles, reaching the Pacific Ocean at the city of San Diego. The so-called El Capitan dam site is located in and just above a rocky gorge through which the river passes, at a point about 35 miles from the city. In the year 1899 a company known as the San Diego Flume Company, which is a predecessor of the defendants in ownership and operation of the water development and distribution system now owned by the irrigation district, was organized and began the construction of a dam, reservoir, and flume for the diversion and use of water of the San Diego river and of certain of its tributaries. The site of that dam and reservoir is on Boulder creek, about 30 miles, more or less, above the location of the property sought to be condemned in this case. The reservoir became known as Cuyamaca Lake. The water from that reservoir, after passing along Boulder creek for a distance of 14 miles, was diverted and thence flowed through a flume constructed at a suitable grade and which carried the water down to the city; some of the water being distributed to smaller cities and towns, and to agricultural and other lands along the line of this flume and above the city. This flume, as now situated, crosses the lands sought to be condemned in this case, at a level approximately 50 feet higher than the high-water mark of the proposed reservoir.
At a point about five miles below El Capitan dam site, on the river, there is a certain tract of land on which there is a pumping plant, which was first installed in the year 1898 by La Mesa Development Company, which afterwards transferred that property to the San Diego Flume Company, and by further transfers the same property at the time of the commencement of this action belonged to the Cuyamaca Water Company, a partnership. Upstream from the pumping plant, and below El Capitan dam site, there is a basin of approximately 1,400 acres, filled with sand and gravel (and under the same ownership as the pumping plant), and known as El Monte reservoir. Within the area which would contain the reservoir to be created by El Capitan dam there are other water-bearing lands on which at one time a pumping plant had been established and operated by defendant Cuyamaca Water Company, a partnership, and the waters so obtained were carried into the distributing system of that company. Said pumping plant, which had been operated during the years 1913 and 1914, was completely destroyed by flood waters in January, 1916, and that pumping plant has not since then been restored. As a part of its defense herein the defendants claimed that the waters contained in the sands located in El Capitan reservoir site slowly seep down into El Monte reservoir, and thus act as a feeder for that reservoir. They further claimed that the Cuyamaca Water Company and its successors at all times intended, whenever the necessity therefor should appear, to resume the pumping of water from El Capitan reservoir lands, and to use the waters so developed and obtained, either by diverting the same directly to the flume or by permitting them to percolate down into the sands of El Monte reservoir. They further claimed that said owners, prior to and at the time of commencement of this action, held and owned the land constituting the dam site for the purpose and with the intention that they would thereafter construct at that place a dam for the purpose of holding back flood waters and increasing the supply of water available for use in the sands of El Monte reservoir.
At this point it seems necessary to quote certain of the findings which have a bearing upon the foregoing issues of the case:
"X. The Cuyamaca Water Company, a copartnership, is in charge of and operates a public utility, and for many years past has been and now is engaged in the conservation, impounding and distribution of water to public and private consumers for municipal, domestic and irrigation purposes, within the county of San Diego, and that among the consumers are the incorporated cites of La Mesa and El Cajon and the towns of Lakeside, Foster, Lemon Grove, Kensington Park and the territory so served by said public utility is without the boundaries of the city of San Diego. It is not true that defendant has been for many years last past, or now is, conserving or distributing water from a portion of said lands herein condemned by the plaintiff, subject to said reservations and restriction, to the inhabitants of said cities or of said territory for domestic or other uses.
"XI. It is not true that by the building and erection of the dam sought to be constructed by plaintiff the rights of the defendants, or of any one or more of them in and to the waters of the San Diego river will be destroyed or severed from the land of the defendants or of any one or more of them, or that the defendants, or any one or more of them will be damaged by the destruction or taking of said water rights, if said property, subject to said reservations and restriction, is condemned by plaintiff herein."
"XIX. It is not true that the property taken and condemned by this plaintiff in this action is an integral part of a water system owned and operated by the defendant, Cuyamaca Water Company, a copartnership, as herein found, or was at the time of the commencement of this action, or at the time of the trial of this action, appropriated to the use, or actually used in the conservation or distribution of water to the inhabitants of said cities and towns, or of said irrigation district, for domestic or irrigation purposes, other than as used for a right of way for a flume or conduit for the transmission and conveyance of water as herein found, and other than for the pumping of water therefrom at the times and in the amounts all as herein specifically found. It is not true that the lands herein taken and condemned, subject to said reservations and restriction, are used as a means of conducting water or impounding water, or as a reserve storage reservoir for periods of drought."
"XXII. That said lands consisting of 190 acres herein taken and condemned, subject to said reservations and restrictions, and no part thereof is now, or was at the time of the commencement or of the trial of this action or ever has been, used by the defendants or any one or more of them for a public use or purpose other than as a right of way for said flume or conduit as herein specifically found and other than for the purpose of pumping water therefrom during the years 1913 and 1914, as herein specifically found, and that said 190 acres of land herein taken and condemned, subject to said reservations and restriction, and no part thereof, is now or ever has been appropriated to a public use or purpose which is inconsistent with the use sought to be made of said property by said plaintiff; and that the use to be made of said property by plaintiff is consistent with the continuance of the use of said 190 acres of land herein sought to be condemned, subject to said reservations and restriction, and every part and portion thereof heretofore made of said property or any part or portion thereof, by said defendants or any one or more of them.
"XXIII. That the defendant Cuyamaca Water Company, a copartnership, is in charge of and operates a public utility and for many years last past has been, and is now, engaged in the conservation, impounding and distribution of water to public and private consumers for domestic purposes within the county of San Diego. That said defendant Cuyamaca Water Company has not, for many years last past, and is not now conserving and distributing water from a portion of said 190 acres of land herein taken and condemned, subject to said reservations and restriction, to the inhabitants of any city or incorporated village or town, or any other person or persons for any purpose whatsoever, and that no part of said 190 acres herein taken and condemned by plaintiff has, at any time since January, 1916, been used by said defendant Cuyamaca Water Company, a copartnership, or by any one or more of said defendants, for public use other than as a right of way for a flume or conduit as herein found. That no part of said 190 acres herein taken and condemned has ever been appropriated or dedicated to a public use other than as herein specifically found, and that no part of said property at the date of the issuance of the summons in this case or at any time subsequent thereto, has been appropriated and dedicated to a public use by the defendants herein, or by any other party, save and except the use of said land for a right of way for a flume or conduit as herein specifically found."
"XXV. That at the date of the commencement of this action, to-wit: April 16, 1924, Ed Fletcher and the estate of James A. Murray were the owners of the property sought to be condemned in this action; that on said date defendant, the Cuyamaca Water Company, a corporation, had no interest in said lands and property sought to be condemned in this action; that on said date the Cuyamaca Water Company, a copartnership, had no interest in said lands and property sought to be condemned in this action; that on said date the La Mesa, Lemon Grove and Spring Valley Irrigation District had no interest in said lands and property sought to be condemned in this action, save an option to buy the same which on said date had not been exercised, and that at the present time said La Mesa, Lemon Grove and Spring Valley Irrigation District has no interest in said property save an executory contract to purchase the same, which said contract has not as yet been executed; and that at the date of the commencement of this action, defendant C.F. Stern had no interest in and to any of the lands and property sought to be condemned in this action; and that at the date of said trial, the 15th day of June, 1925, Ed Fletcher was the sole owner of the property and lands sought to be taken by said plaintiff in this action."
By the conclusions of law filed with the findings of fact, and by the judgment directed to be entered in accordance with said findings and conclusions, the court determined that the use of said lands sought to be taken for reservoir purposes, etc., is a use authorized by law, and that the taking by plaintiff of said land, subject to the reservations and restrictions mentioned in the complaint as amended, is necessary for such use. It was directed that the lands described in the complaint be taken, subject to the stated reservations and restrictions; that the lands so taken may be used by plaintiff and defendant Cuyamaca Water Company, a copartnership, or its successors in interest, in common, and that the use of said lands by plaintiff for the stated purposes is consistent with the use thereof, and the continuance of such use, by said copartnership or its successors in interest "according to the reservations and restrictions herein specifically provided"; that said dam and reservoir is planned and located in a manner which will be most compatible with the greatest public good and the least private injury; "that no part of the lands condemned and taken in this proceeding by plaintiff has ever been dedicated, appropriated or used, or is now dedicated, appropriated or used, for a public use which is inconsistent with the use thereof for dam and reservoir purposes for the impounding, conserving and delivery of water subject to the reservations and restriction herein contained."
On the subject of ownership by defendants of the lands sought to be taken in this action, findings VII and VIII should be read together with finding XXV. From these findings so considered together, it appears that at the time of the commencement of this action, the legal title to the land was vested in Ed Fletcher, but that such title was held by him as the sole surviving member of the copartnership known as the Cuyamaca Water Company. This ownership, however, was subject to a contract giving the intervener an option to purchase this property, which option was exercised, and was succeeded by a formal agreement of purchase and sale subsequent to the time of the commencement of this action. The evidence shows that at all times the Cuyamaca Water Company and its successors were holding the property as a part of the system of water supply and service of that company. This fact (if we correctly understand the effect of the voluminous evidence in the record) is not contradicted by any of the evidence. Nothing is shown to have occurred in connection with the changes in title of the property of the Cuyamaca Water Company which would in any way alter or diminish the public uses of the property owned by that company and constituting its water system, or that could in any way diminish the beneficial uses and rights vested in the cities, communities, and persons who were being furnished with water from that system.
Paraphrasing the facts stated indirectly in findings XIX and XXII, it is in effect found that during the years 1913 and 1914 the land sought to be condemned was used for the purpose of pumping water therefrom "as herein specifically found." Turning to finding XI we learn that during those two years there was pumped from said land approximately 22,000,000 gallons of water by defendant Cuyamaca Water Company, a copartnership, and distributed to its consumers; but that in January, 1916, the pumping plant which had been so operated was completely destroyed by flood waters and had not since been restored. Nevertheless the court found that it is not true that said land is used as a means of conducting waters or impounding waters, or as a reserve storage for periods of drought. In finding XXII, however, there is an indirect recognition of the fact that said land has been appropriated to a public use, when the court found that said land is not now and never has been appropriated to a public use or purpose which is inconsistent with the use sought to be made of said property by said plaintiff. This in effect is a statement that said land has been appropriated to a public use. This being so, that public use must continue to exist unless there is some evidence of its abandonment. The record is utterly devoid of any evidence that the beneficiaries of the use have ever consented to give up any of the rights which had once been conferred upon them in connection with the water service to which they were entitled. And if it be assumed that the water company would have had the power of abandonment or surrender of any such rights to the detriment of their beneficiaries, the evidence on that subject seems to be entirely to the effect that the use of said land for the purposes to which it was dedicated had not been abandoned. The testimony of defendant Fletcher is directly to the point that this land is "part of the ownership of property owned by the public utilities, used and useful and held in reserve for future development, and to draw on the underground supply of water in case of need." He further testified that the reason why they did not rebuild those pumps after the flood of 1916 was that: "We had no necessity for so doing on account of getting a 100 per cent. supply of water from other sources, and it would be only an added expense waiting for a dry period to come when we could utilize these wells as a reserve." We think that under the facts with relation to this particular subject, this case is similar to that presented in City of Santa Barbara v. Gould, 143 Cal. 421, 77 P. 151. The defendant Montecito Valley Water Company in that action was a corporation engaged in the supplying of water for the use of the inhabitants of the village of Montecito. The land sought to be condemned was water-bearing land which had been used as a part of the company’s water system. At the time when the action was begun the water so supplied from the source known as Cold Spring branch had diminished so that it would not flow down to the point of diversion maintained by the company, and the company was not at that particular time using the water. The Supreme Court said: "Nor was said water company responsible for the drought. It ceased to use the water because the water had ceased to flow, but this would not deprive it of the use of the water when it should again flow. Said water company had acquired the land for the purpose of preserving the flow of the stream in its natural state. It had the right to a portion of the waters of the stream. It was engaged in supplying water to the public at the time the action was commenced. Its property could not be taken on the theory that it was not devoted to public use at the time this action was commenced, unless it had of its own volition ceased to devote it to public use. *** If the waters *** should again flow down to the company’s point of diversion, it would be entitled to the amount of water owned by it. It is also entitled to the land for the purpose of preserving the normal and natural flow of the stream."
If we give consideration to the findings of fact according to their entire scope and meaning, it becomes evident that plaintiff’s claim of right to condemn has been sustained by the trial court upon the theory that by putting into the decree certain reservations and restrictions upon plaintiff’s use of the dam and reservoir proposed to be constructed, the water rights of the defendants which are appurtenant to the land sought to be taken will be fully protected, and that in view of that protection the defendants have no valid defense to the action. This is in effect an attempted application of the right of concurrent use for public purposes, of property sought to be condemned for some use not inconsistent with an existing public use. This right to take such property for a concurrent public use which is consistent with continuance of the use of such property for an existing public purpose is recognized by the statute which governs in eminent domain proceedings. Code Civ.Proc., § 1240, subd. 4. The right so given, however, is subject to an exception which is vitally important in this case. "But property appropriated to the use of any county, city and county, incorporated city or town or municipal water district, may not be taken by any other county, city and county, incorporated city or town, or municipal water district, while such property is so appropriated and used for the public purposes for which it has been so appropriated." A very thorough discussion of these Code provisions, including the stated exception, is to be found in Mono Power Co. v. County of Los Angeles, 284 F. 784. In that decision by the Circuit Court of Appeals, Ninth Circuit, the same kind of conflicting interest was involved that is exhibited by the facts in the present case. In that case the city was seeking to condemn land of the power company, and it was admitted that the use intended by the city, if permitted to take the property, was inconsistent with the public use then existing under beneficial rights vested in other cities and communities served by the power company. The court held that by reason of the final clause of subdivision 4, quoted above, the demand of the city of Los Angeles must be denied. The Mono Power Co. Case is referred to in East Bay Municipal Utility District v. Railroad Commission, 194 Cal. 603, at page 621 et seq., 229 P. 949, 955. The opinion is there expressed that where there is to be no change or interruption of the use of water by the inhabitants of a city, and where the condemning municipal agency is merely proposing to take over from a water company its property subject to the same use to which it was dedicated, such declared purposes do not bring the plaintiff within the prohibitions of the cited Code provisions. The Supreme Court said: "It is here proposed to continue the use of the water to the same territory to which it has heretofore been appropriated. The territory and the peoples thereof are not to be disturbed in the use to which the water is now put and are to enjoy an uninterrupted use thereof, if the petitioner succeeds in its purpose. In other words, the change will result not in the disturbance of the use or appropriation of the water but in the agency authorized by law to administer the trust. We find nothing in the sections referred to which would prohibit such a change."
In that case the petitioner was seeking a writ of mandate to compel the Railroad Commission to make a valuation of certain properties in contemplation of the acquisition of the same under condemnation or other proceedings. The question relating to the right to condemn was not directly or necessarily presented. In the case at bar we meet that question face to face, and under circumstances which are materially different from those considered in the East Bay Case. Notwithstanding the studied effort shown by the findings and judgment herein, to make a decree of condemnation which will enable plaintiff to take the land without in any way disturbing or interrupting the use to which the property is now put by the defendants for the benefit of the two incorporated cities and several unincorporated towns to which water is supplied, we think that the construction and maintenance of the dam and reservoir as proposed necessarily includes a disturbance, change, and probable interruption of the use. It is not here proposed to substitute the plaintiff for the present owners of the property, and make the plaintiff directly accountable as the agency in charge of the use. The intervener, after the condemnation, will continue to be the agency administering the use and supplying water to its consumers, but will be subjected to new conditions, and to the will of others, in the management of that part of its property which will be transferred to the possession and control of the plaintiff. Instead of an underground supply of pure water taken out by pumping from the land, and instead of water percolating into El Monte basin, the beneficiaries of the use in charge of the defendants will be compelled to submit to the risks and inconveniences of a substituted supply drawn from an open reservoir replenished by storm water, and delivered by the hands of a stranger. The injury to the rights of the defendants and their beneficiaries may be seen, without taking into consideration the disputed claim of appellants that they also intended to use the condemned property as a dam site by means of which they would be able to increase their supply of water in El Monte sands.
Since the conclusions above stated upon questions which are determinative of the appeal require a reversal of the judgment, we find it not necessary to express an opinion upon the other grounds of appeal which have been presented in the briefs for appellants in support of their objections to the judgment. The application of appellants wherein they request that this court receive and take additional evidence of facts occurring subsequent to the decision appealed from, and to reconsider and review certain of the evidence produced before the trial court, and to make findings of fact based upon such evidence contrary to and in addition to those made by the trial court, is denied. The order granting plaintiff’s motion for a new trial of that portion of the case decided by the jury, and setting aside the verdict of the jury, is affirmed. That portion of the judgment made and rendered in said action on the 22d day of August, 1925, which adjudges that the plaintiff is entitled to condemn the lands described in its complaint as amended, subject to the reservations and restrictions contained therein and the further restrictions in the findings of fact and conclusions of law specified, is reversed.
I concur: YORK, J.
Mr. Justice HOUSER, deeming himself disqualified, takes no part in this decision.