Price v. Riverside Land & Irrigating Co.

McKinstry, J.:

The purposes for which defendant was incorporated, as set forth in its articles, were : “ To buy, own, occupy, improve, and sell or otherwise dispose of any lands and real estate in the State of California, and any personal property; to acquire and hold .any water rights and privileges, and to use and dispose of the same; to conduct and maintain ditches and canals, and all easements and rights appertaining thereto, for the purpose of taking and conveying water for irrigation, milling, manufacturing, or other purposes; to make, purchase, maintain, hold, and use all dams, reservoirs, ditches, sluices, canals, aqueducts, and structures connected therewith; to furnish, sell, give, and supply water to any person or corporation, for irrigation, mechanical or other purposes; to make improvements, borrow money, and transact any and all business and things connected with the business of the corporation, or relating thereto.”

It is not necessary to inquire whether a single corporation can be formed under more than one of the statutes, or be clothed with the powers and franchises conferred upon two or more of the separate classes of corporations such as may be created under different laws. It is quite certain that defendant cannot escape the performance of a public duty which it assumed on its *433 attempted incorporation as a water company by the assertion of a right, as another sort of corporation, to apply all the water to its own uses, or to those of its grantees. So far as the appropriation, purchase, or condemnation as to a public use of waters for irrigation purposes, as also their distribution for rates or tolls, is concerned, defendant cannot deny that it is a 66 canal ” company. Each person entitled to water, on the theory that such companies are charged with the duty of disposing of it for proper compensation, is entitled to treat with defendant as if it had been organized exclusively under the Act • of May 14th, 1862, “ An act to authorize the incorporation of canal companies and the construction of canals.” (Stats. 1862, p. 540.) The rights and privileges which may be claimed and exercised by defendant with respect to water are derived from that act. With reference to such rights and privileges, and their corresponding obligations, the defendant is at least, a corporation do facto ; it cannot successfully assert the one and disregard the other. Every corporation deriving its being from the act above cited has impressed upon it a public trust—the duty of furnishing water, if water it has, to all those who come within the class or community for whose alleged benefit it has been created. Every such corporation may exercise, on behalf of the public, the power of eminent domain; and no man nor company of men, incorporated or otherwise, can take the property of a citizen for his or their own exclusive benefit. So plain a proposition cannot require elaboration. The power—in its nature a public power—and the public duty are correlative. The duty exists without any express statutory words imposing it wherever the public use appears. Sor is it necessary, as the case is presented, to deny that a corporation may be formed to furnish with water, for purposes of irrigation, a particular community, or even a particular territory, provided the territory is not in the exclusive occupation of the corporation itself. This defendant was organized 66 to furnish, sell, give, or supply water to any- person or corporation, for irrigation, mechanical or other purposes.” Even assuming that the duty imposed on defendant by its articles of incorporation, and the law under which it was created, could be limited by a transfer to it from the Southern California Colony Association of its “ rights, franchises, and privileges,” *434 the last-named corporation was organized to furnish, etc., water to people of the town and colony mentioned in the complaint, and others ” in the townships specifically set forth, for irrigation and oth'er purposes. The plaintiff’s land is a portion of one of the townships named in the complaint, and the articles of incorporation of the Southern California Colony Association. The defendant, therefore, is bound to furnish plaintiff with water to irrigate his lands on his payment of the rates fixed in the manner prescribed by law—it having the water to furnish.

The case shows that defendant has an ample supply of water to furnish the quantity demanded by those entitled to receive it, including the quantity alleged on argument to be needed by plaintiff.

The rates which defendant 'may charge have never been fixed in the manner required by law, but defendant has itself fixed the rates, and could not be permitted to refuse water to one otherwise. entitled to receive it who should offer to pay those rates. It is not necessary to inquire whether, until the rates are fixed in the legal mode, defendant could be compelled to furnish water to the extent of its capacity free of charge.

That plaintiff may resort to mandamus as a means of securing his right, must be regarded as settled in this country. (Moses on Mandamus, 155,171; State v. Hartford & New Haven R. R. Co. 29 Conn. 538; The Borough of Uniontown v. Commonwealth, 34 Pa. St. 293; Maddox v. Graham, 2 Metc. Ky. 65; Fremont v. Crippen, 10 Cal. 211; Napa V. R. R. Co. v. Board of Supervisors of Napa County, 30 id. 438.)

It is, however, an imperative rule, that, before making an application for a writ of mandamus, an express demand or request must be made on a defendant to perform the act sought to be enforced by the writ. (Moses on Mandamus, 201; Angel & Ames on Corp. 706, 719, 723; Tapping, 282.) The allegations of the complaint supposed to imply a demand are not denied by the answer. But the only allegations which relate to the matter of demand or request are as follows:

“ That this applicant has always paid the respondent, and its predecessor in interest, the said Southern California Colony Association, the regular rates and charges for the water, used by him upon his said tract of land and premises, and is still *435 willing and ready and offers to pay such rates and charges at and upon the same rates, price, and terms that the same is or may be supplied to all others for similar purposes; but the respondent has refused and does refuse to supply to this applicant, or allow him the use or flow of, the water from said upper ditch, to irrigate or sustain his said trees, or for making or sustaining any future improvements upon his said premises at or upon the same regular price, rates, or terms as aforesaid, for which it furnishes its said water to its customers using the same, or at or upon any regular price, rates, or terms for which it furnishes its said water to its customers, and refuses to furnish applicant any water at all for any future improvements, trees, vines, or crops upon his said premises; and on the 30th day of April, 1877, the defendant caused the supply of water upon his said premises aforesaid to be diverted therefrom and stopped, and threatened to stop and divert such supply upon his said premises for all purposes except for watering his said alfalfa patch.”

This is not an averment, that, previously to making application for the writ, plaintiff made distinct and express demand upon defendant for a supply of any specific quantity of water— tendering or offering to pay the amount which should be paid, reference being had to the rates fixed by defendant; nor is there an averment—supposing defendant to be compellable to furnish water without the payment of any charge—of a distinct demand for any specific quantity. The plaintiff docs not jpray that defendant be commanded to furnish any particular quantity. The judgment of the Court below—following the prayer of the complaint—is, that defendant furnish and supply the plaintiff, on demand and payment of the regular- rates, “ such quantity or amount of water * * * as may be required for irrigation, domestic use, and other useful purposes, upon his premises.”

When we say the preliminary demand must be definite and specific, we are to be understood as saying that it must be as certain ,as the subject-matter of the litigation, which may follow a refusal, will admit of. The demand in a case like that before us should have reference to the system of charges, if any, established in the mode prescribed by law. If, for example, *436 the rate is fixed at a certain sum per gallon, or thousand gallons, the demand should be for a quantity of water equal to a certain measurement in gallons: if rates are fixed with reference to acreage, as so much money for sufficient water to irrigate each acre, the demand should point to that mode of estimating the quantity to be supplied. The demand should be so definite as that defendant should have his option to comply with it, or to defend the action.

The plaintiff did not precede his application by a specific demand ; neither did he ask in his complaint, nor did the Court, by its judgment, afford him that specific and certain relief which mandamus can be used to secure, such as defines clearly the rights of the plaintiff, and distinctly fixes the obligation imposed upon the defendant. The specific demand is a prerequisite to the commencement of the proceeding. A failure to allege such demand’ may therefore be taken advantage of by general demurrer.

Judgment and order reversed, and cause remanded, with directions to the Court below to sustain the demurrer to the complaint.

Siiarpstein, J., and Thornton, J., concurred.