The herald., 1896-02-14
Superior Judge Shaw Hands
Down an Opinion
VERY IMPORTANT MATTER
The People of Pomona Are VitalIy Inter.
ested Ia the Decision
Suit Of the Palomares Irrigation Company
Against tho Pomona Land and Water
Company-Text Of the Decision

of interest to those who have water rights
or think that they have them. The decis-
ion was as follows:
The defendants have demurred to the
complaint upon the grounds that it does
not state facts sufficient to constitute a
cause of action, that it is barred by the
statute of limitations,t that it is uncertain in
its statement of the rights invaded, the
wrongs done and the manner of the injury,
and that the persons who held stock in
both the plaintiff and defendant corpora
tion should be made parties to the action.
In substance the complaint states that
the plaintiff is the owner of the water in the
soil of certain land, of certain flowing wells
thereon and water rights therein to the ex-
tent of two hundred miners inches, with
the right to develop the same ;that on April
1884 the defendant, the Pomona land
and water company forcibly, without right
and without the consent of plaintiff divert
ed all the water from certain of the wells so
owned by plaintiff and ever since has con.
tinued and does now continue such diver
sion, and has secretly tapped the pipes
carrying the water from certain other of
the said wells and has taken therefrom
and continues to take therefrom a large
amount of water, so that the PLAINTIFFS
water supply therefrom is reduced to six
teen miners inches; that sixty miners
inches are necessary for the Use of plain
tiff; that said defendant claims Adversely
to plaintiff all the water in the soil OF the
said lands undeveloped and all the water
flowing from certain of the wells owned by
plaintiff, and that the defendant, the Po-
mona City Water works, also CLAIMS with
out right some interest in the water be-
longing to the plaintiff, all of which causes
plaintiff great loss and damage, and casts
cloud on the title of the plaintiff to said
property.
These facts constitute a cause or action
for an injunction to prevent the further di-
version of the water and to quiet plaintiff 8
title thereto.
A demurrer on the around that the ac
ton is barred by the statute of limitations
will not be sustained unless it affirmative.
ly appears on the face of the complaint
that the action did not accrue within the
time limited by the statute. A simple un-
certainty in the allegations as to when it
did accrue. or failure to show affirma-
lively that it did accrue after the time linn
tied will not make complaint subject to
successful attack by demurrer on this
ground.
The complaint does not show aff1rma-
lively when all the acts complained of
occurred, and therefore, by the above rule,
it does not on it's face show that it is barred
by the statute of limitations.
do not think the demurrer is uncertain
! as to the rights it seeks to enforce, nor as
| to the wrongs 1t complains of.
| The specification of the demurrer in re-
gard to the uncertainty as to the manner
| of the injury is that it is uncertain there
from Tin what manner the plaintiff is in
| jured by any of the resolutions or convey
ances mentioned in the complaint"
| Upon an examination of these resolutions
| and conveyances, and a consideration OF
the allegations of the complaint regarding
| them, am of the opinion that it does not
appear that the plaintiff is injured at all
thereby, and therefore it cannot be said
there is any uncertainty in that respect.
From the form of the complaint | infer
that this subject is considered by the plain
tiff to be important, and it is therefore
proper to explain why have come to this
conclusion.
1t appears that on March 81, 1887, the
Pomona Land and Water company exc
cuted deed conveying to plaintiff the
water system, flowing wells and the rights
to develop water here in question. This
deed contained a clause providing that the
plaintiff should take charge of the water
pipes conveyed and of the wells on the
Williams tract and Lopez tract and pro-
ceed to develop enough water on the land
described to make upa flow of 200 miners
| inches altogether. and should deliver to
the order of the Pomona Land and Water
company 100 shares OF plaintiffs capital
stock for each inch of water 80 developed.
This clause, it seems, did not correctly ex-
press the agreement between the parties,
So resolution was afterwards passed by
each of the two corporations reciting the
mistake and correcting it. By this resolu-
ton it was declared that the deed should
be corrected so as to provide that the de-
velopment of the water be made by the
Pomona Land and Water company at its
own expense, and that when so developed
the water should be piped to and delivered
to the plaintiff, and that for each inch OF
water then flowing, or thereafter made to
flow, the Pomona Land and Water compa-
ny should receive 100 shares of the plain
tiff's capital stock.
The only detriment suffered by the
plaintiff by this change comes from the
provision that 100 shares of stock should
be issued for each inch of water then flow
ing as we'll as for each inch afterwards de-
veloped, whereas before the correction the
deed provided for the delivery of stock
only for the water subsequently developed
and not for that already flowing.
But it seems that the stock for the water
already flowing has been issued and de-
livered, and no complaint is made on that
score. Aside from this, the change was a
benefit in every respect to the plaintiff in
stead of an injury. Thereby the burden of
paying tno COSt Cl ueVclOplIIe duu piping
the water was shifted from the plaintiff,
and the duty and expense OF doing these
things was imposed on the Pomona Land
and Water company. No injury could
arise from this unless the Pomona Land
and Water company committed some
breach of the agreement i'll that respect,
and no such breach is alleged.
The complaint further AYERS that the
resolutions have been recorded in the re-
corder's office of this county and that they
constitute cloud on the plaintiffs title to
the property; that there are only sixteen
inches of water flowing in its pipes. where
as sixty inches are needed, and that the
plaintiff cannot go upon the land to de-
velop the additional water necessary. be-
cause since the change was made in the
deed by these resolutions it does not APP
pear that the plaintiff has right of entry
for that purpose.
This, in my opinion, is misconception
of the effect of the correction embodied in
the resolutions. The obligation of the Po-
mona Land and Water company thereby
expressed, to develop the water and deliv-
er it to the plaintiff, is a mere personal
covenant and does not, as plaintiff seems
to suppose, convey to or reserve in that
CORPORATION any interest in the property
described, or right to occupy the land, sil-
perior to the right of the plaintiff. 1t
gives, by implication, a license to the Po-
mona Land and Water company to go
upon the land to make the development
but this implied license it derived from
the plaintiff, and it would cease at once
upon the failure or refusal of the licensee
to perform the duty from which the license
is implied.