Opinion
In Bank. Appeal from Superior Court, Merced County; E. N. Rector, Judge.
For opinion of the District Court of Appeals, see 147 P. 254.
Frank H. Short, of Freson, F. G. Ostrander, of Merced, and Edward F. Treadwell, of San Francisco, for appellant.
J. C. Campbell, of San Francisco, and James F. Peck, of Oakland, for respondent.
PER CURIAM.
The petition to transfer this cause to the Supreme Court for a rehearing is denied. The opinion and decision of the District Court of Appeal is, however, modified, in effect, in the following particulars:
In so far as that opinion holds that the issue as to the necessity for the taking of the property sought to be condemned must be submitted to a jury, unless a jury trial thereof is waived, it is erroneous. The rule is that in cases of eminent domain all questions, except those necessary to determine the compensation to be made to the owner for his property taken or damaged, are to be determined by the court. See Vallejo, etc., Co. v. Reed Orchard Co., 147 P. 238 (Sac. No. 2077), decided March 5, 1915.
This necessarily includes, among the questions triable by the court without a jury, the question whether the plaintiff's canal will unreasonably waste the water to be condemned and the quantity necessary for the use, after allowing for unavoidable waste; also the question whether the water which the plaintiff already has acquired the right to take would be sufficient for its public use, if carried and distributed without unreasonable waste.
There is considerable discussion in the opinion of the district court with respect to the claim of respondent that the plaintiff should be required to cement its canals to prevent waste by seepage. Its purport on this point is not as clear as could be wished. Inasmuch as the case is remanded for a new trial and these questions are thereupon to be determined by the court below, without a jury, we think all of the discussion on that subject would better have been omitted, and we deem it advisable to declare that nothing said about them in the opinion is to be regarded, on the new trial, as the law of the case, and that the court below be left free to decide the case unhampered in this respect. They are questions of fact to be decided in each case upon all the circumstances. No unreasonable expense should be imposed on the public service company.