Opinion
Civ. No. 2692.
February 16, 1924.
APPEAL from an order of the Superior Court of Sutter County denying a motion for a change of venue. K. S. Mahon, Judge. Affirmed.
The facts are stated in the opinion of the court.
Guy C. Earl and W. H. Spaulding for Appellants.
Isaac Frohman, W. H. Carlin and Henry Ingram for Respondent.
This appeal is from an order denying defendants' motion for a change of venue.
The complaint alleges that the plaintiff is a public utility engaged in the sale and distribution of water to the inhabitants of Butte and Sutter Counties for irrigation and domestic uses; that it is the owner of a canal heading at a point on Feather River in Butte County and running thence through that county and Sutter County; that it is the owner of the right to appropriate, divert through said canal, and use 2,500 second-feet of the water naturally flowing in Feather River; that an appropriation of 2,000 second-feet of said water was made at the head of said canal in the year 1902 and that an additional appropriation of 500 second-feet thereof was made in 1918 at a point in Sutter County where plaintiff pumps water from the river into its aforesaid canal; and that the defendants claim said water adversely to plaintiff and "threaten to impound and store and take and divert large quantities of the waters of said Feather River above the said diverting works of plaintiff at times when there will remain less water flowing in the said river than the said quantity so appropriated and used by plaintiff, and so as to prevent plaintiff from diverting and using the same." The prayer is for a decree quieting plaintiff's title to the 2,500 second-feet of water and enjoining defendants from interfering with plaintiff's use thereof. [1] The defendants demanded that the trial of the action be had in Butte County on the ground "that the cause of said action is for the determination of an estate or interest in real property and that the subject of said action, to wit, such real property and interest therein is situated, particularly the alleged property right in and to the alleged right of appropriation of 2000 cubic feet per second of the waters of the Feather River, as alleged in said complaint, in the County of Butte, State of California, and that said real property so alleged in said complaint to be the property of said plaintiff is a separate and distinct property and property right entirely situated in said County of Butte, State of California, and no part of said property or property right is situated outside of the said County of Butte."
Article VI, section 5, of the constitution provides "that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated." The parties are agreed that the property right asserted by plaintiff is real property. In Lower Kings River Water Ditch Co. v. Kings River Fresno Canal Co., 60 Cal. 408, where the facts alleged were similar to those of the instant case, the court said: "Watercourses are either natural or artificial. Plaintiff's ditch was an artificial watercourse. . . . The right of plaintiff, as stated in its complaint, to have the water flow in the river to the head of its ditch, is an incorporeal hereditament, appertaining to its watercourse. Granting that plaintiff does not own the corpus of the water until it shall enter its ditch, yet the right to have it flow into the ditch appertains to the ditch. Real property consists of land, that which is affixed to land, and that which is incidental or appurtenant to land (Civ. Code, sec. 658). If the watercourse, consisting of the bed and banks of the trench, and of the water therein, be real property, the right to have water flow to it is incidental and appurtenant thereto. The acts complained of are preventing water from flowing in plaintiff's ditch; the ditch is located in both counties; therefore the subject of the action is in both counties, and the action might have been brought in either." To the same effect are the cases of Last Chance etc. Co. v. Emigrant Co., 129 Cal. 277 [ 61 P. 960], and Yolo Co. Cons. Water Co. v. Adamson, 22 Cal.App. 493 [ 135 P. 48]. In Stanislaus Water Co. v. Bachman, 152 Cal. 716, 726 [15 L. R. A. (N. S.) 359, 93 P. 858, 863], it is said: "The right to have water flow from a river into a ditch is real property; and so also is the water while flowing in the ditch. . . . A ditch for carrying water is real estate." (See, also, E. Clement Horst Co. v. New Blue Pt. Min. Co., 177 Cal. 631, 640 [ 171 P. 417].) Since the property involved is real estate the plaintiff, under the constitutional provision quoted, had the right to bring the action in any county in which any part of such real estate is situated.
[2] Appellant contends that since plaintiff's alleged right to 2,500 second-feet of water was initiated by two separate appropriations, one in each county, the complaint states two separate causes of action. The merits of this contention need not be considered because, if the appropriation made in Sutter County be eliminated, it appears from the other allegations of the complaint that plaintiff is diverting 2,000 second-feet of water into its canal, through which the water is carried and distributed in both counties. Under the authorities cited, an action to quiet title to this 2,000 second-feet of water alone could have been brought in either county.
The order is affirmed.
Plummer, J., and Shields, J., pro tem., concurred.
A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 11, 1924.
All the Justices concurred.