Opinion
Rehearing Denied March 24, 1965.
For Opinion on Hearing, see 46 Cal.Rptr. 465, 405 P.2d 377.
Redwine & Sherrill, Justin M. McCarthy, Riverside, and David N.M. Berk, Beaumont, for appellant.
Thompson & Colegate, Riverside, and Franz R. Sachse, Fallbrook, for respondent.
STONE, Justice.
Appellant, City of Beaumont, filed an action to condemn respondent, Beaumont Irrigation District. By its amended complaint Further, appellant city alleges that respondent irrigation district operates a single public facility, 'specifically, an irrigation system' rendering services that city is capable of performing under its broad general powers. Appellant's need for water and that the only source is controlled by district is pleaded in support of the crucial allegation that 'As between the city and the district, the public use heretofore described is a more necessary public use than any other public use to which the functions and property so sought to be taken and condemned can be put and as between these parties it is more necessary that the public function heretofore adminstered, operated and controlled by the district be performed by the city.'
Respondent district demurred to the complaint upon the grounds that it does not state facts sufficient to constitute a cause of action, and that the court has no jurisdiction of the subject matter. The court's order simply says: 'Demurrer to second amended complaint is sustained, and plaintiff is granted 10 days to amend.'
We are informed in the briefs that the order was based upon a determination by the trial court that a city does not possess, under its powers of eminent domain, authority to condemn the property of an irrigation district. Oral argument was confined to the same basic proposition.
Since the case comes to us on appeal from a judgment entered upon an order sustaining a demurrer, we must accept, the allegations of the complaint as true. (Katenkamp v. Union Realty Co., 6 Cal.2d 765, 769, 59 P.2d 473; Stigall v. City of Taft, 58 Cal.2d 565, 567-568, 25 Cal.Rptr. 441, 375 P.2d 289.)
At the outset, we note that the people, by the constitution, have curbed their own power of sovereignty in the exercise of eminent domain by forbidding a taking except by due process of law and by requiring the payment of just compensation for the property taken. Consistently, the courts have strictly construed statutes delegating the state's power of eminent domain to subordinate governmental entities. Respondent relies upon cases and treatises expressing this rule, in asserting its basic defense that the power of a city to acquire an irrigation district by eminent domain must be expressly and clearly declared by statute.
For reasons appearing below, we conclude that the general rule of strict construction is not controlling in a deternimation of a city's authority to exercise the power of eminent domain in order to obtain a supply of water.
California water law differs from the general or classic rules of law in many respects, and the characteristics of water and the peculiarities of its uses are recognized by the constitution, by statute and by decisional law. It is particularly significant that the courts have not hesitated to apply the peculiarities of water law in the area of eminent domain. For example, although the power of a city, or an irrigation district, or a county water district, or a municipal water district, to condemn a private or mutual water company has been recognized, the courts uniformly have held that unlike the ordinary condemnation action wherein the condemner takes the property of the owner, the condemner of an irrigation or water company takes subject to the rights of the water users. (Coulter v. Sausalito Bay Water Co., 122 Cal.App. 480, 496, 10 P.2d 780; People ex rel. City of Downey v. Downey County Water Dist., 202 Cal.App.2d 786, 796, 21 Cal.Rptr. 370; Erwin v. The Gage Canal Co., 226 A.C.A. 253; City of Riverside v. Malloch, 226 A.C.A. 268, 37 Cal.Rptr. 862; City of South Pasadena v. Pasadena Land & Water Co.,
Graham v. Pasadena Land & Water Co., Orcutt v. Pasadena Land & Water Co., Durant v. City of Beverly Hills,In County of Tuolumne v. State Board of Equalization, 206 Cal.App.2d 352, 24 Cal.Rptr. 113, we determined that the situs of an appropriative water right is at the point of diversion, and that it is there taxable as real property. Yet San Bernardino Valley Municipal Water Dist. v. Meeks & Daley Water Co., 226 A.C.A. 282, 38 Cal.Rptr. 51, held that a municipal water district could not condemn only the water rights of a mutual water company at the point of diversion, but that it must condemn the water transportation system of the company as well in order to continue service to the individual water users. In San Bernardino Valley Municipal Water Dist. v. The Gage Canal Co., 226 A.C.A. 271, 37 Cal.Rptr. 856, a case in which a municipal water district commenced condemnation proceedings against an irrigation company in San Bernardino County some months after the City of Riverside had instituted a condemnation action against the same water company in Riverside County, the court held that the San Bernardino Valley Municipal Water District could appear in the prior Riverside County action pursuant to Code of Civil Procedure section 1246 as a defendant claiming an interest in the property. The principle there expressed was that section 1246 should be construed with great liberality, 'not because this is a condemnation action but because water rights are being condemned.'
Thus we approach this case against a backdrop of former cases giving special consideration to the particular problems emanating from the condemnation of water and water rights.
We turn to appellant's contention that the power of eminent domain may be granted a city by necessary implication. Appellant cites the language of People v. Superior Court, 10 Cal.2d 288, at page 296, 73 P.2d 1221, at page 1225, where the Supreme Court speaks of conferring the power of eminent domain 'either expressly or by necessary implication,' and City of North Sacramento v. Citizens Utilities Co., 192 Cal.App.2d 482, 485, 13 Cal.Rptr. 538, 540, which tells us that a municipality's power of eminent domain may be 'implied 'as incidental to the existence of other powers expressly granted.''
The following observation in 1 Nichols on Eminent Domain (3d ed.) page 212, also supports appellant's theory of conferred power of eminent domain by necessary implication:
'There are many cases in which land in public use may unquestionably be taken under a general delegation of the power of eminent domain. Express authorization to impair or destroy the prior use is the best authority, but is not required if the nature of the proposed use is such as to confer the power by necessary implication.'
Appellant refers to a number of constitutional provisions, statutes and decisions to find its implied power to condemn an irrigation district. First, Constitution Article XIV, section 3, declares that:
'* * * because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, * * *.'
Water Code sections 104 and 105 proclaim the paramount interest of the People of the State of California in the use of all water of the state, and that the development and use of water must be for the greatest public benefit. It is particularly persuasive that the Legislature gave Water Code sections 104 and 105 further articulation by section 106, which provides that:
'It is hereby declared to be the established policy of this State that the use of water for domestic purposes is the highest use of water and that the next The cosurts have recognized the beneficial use of water principle; in Miller & Lux v. San Joaquin Light & Power Corp., 8 Cal.2d 427, 435, 65 P.2d 1289, 1292, it is said:
'It is well settled in this state that the law relating to the reasonable and beneficial use of water is to be applied in settlement of all water controversies.'
Appellant argues that when the foregoing basic principles governing the use and development of water are read in the light of the powers vested in cities and also the duties laid upon them by the Constitution, by statutes and by decisional law, the power of a city to condemn an irrigation district must necessarily be implied.
Article XI, section 6, of the Contitution provides for the organization of cities and empowers them to carry on municipal functions. Article XI, section 19, specifically provides that a city may establish and operate public works for supplying its inhabitants with water, and that a municipal corporation may furnish such services to inhabitants outside its boundaries. The Legislature has implemented a city's duty to supply water to its inhabitants by Government Code section 38730, which provides:
'A city may acquire by gift, purchase, or condemnation, water, water rights, reservoir sites, rights of way for pipes, aqueducts, flumes, or other conduits, and all other property and appliances suitable and proper to supply water for the use of the city and its inhabitants.' (Emphasis added.)
The Legislature has given further recognition to the power and the duty of a city to furnish water by enacting Water Code section 106,5:
'It is hereby declared to be the established policy of this State that the right of a municipality to acquire and hold rights to the use of water should be protected to the fullest extent necessary for existing and future uses, but that no municipality shall acquire or hold any right to waste water, or to use water for other than municipal purposes, or to prevent the appropriation and application of water in excess of its reasonable and existing needs to useful purposes by others subject to the rights of the municipality to apply such water to municipal uses as and when necessity therefor exists.'
Appellant also cites Code of Civil Procedure section 1238, pertaining to the exercise of the right of eminent domain. This section, after the prefatory language: '* * * the right of eminent domain may be exercised in behalf of the following public uses: * * *,' provides, in subdivision 3, that any incorporated city may utilize eminent domain to acquire property necessary for the proper development and use of water whether necessary at the time of taking or for the future development and control of water.
Supplementing its argument that the foregoing Constitutional provisions and statutes confer upon a city the implied power to condemn an irrigation district, appellant asserts that the power is also necessarily implied from the distinction between the general functions of government performed by a city for its inhabitants, and the limited purposes and specialized functions of an irrigation district. Basically, this is an argument that a city should be recognized as a more necessary governmental entity than an irrigation district in that a city can perform the functions of an irrigation district but that an irrigation district cannot perform the functions of a city. This idea finds support in People ex rel. City of Downey v. Downey County Water Dist., supra, where the court observed, at page 795-796, 21 Cal.Rptr. at page 375:
'A water district has only such powers as are given to it by statute and it is an entity, the powers and functions of which are derived entirely from the legislature. Water Code (Rank v. Krug (United States), D.C.,
The reasoning of Downey is applicable to the facts of the instant case, but we hasten to point out that this broad language is restricted by the condition that a city condemning an irrigation district must assume the burdens and liabilities of the district so that the water users do not lose their right to receive water. (City of South Pasadena v. Pasadena Land & Water Co., supra; Coulter v. Sausalito Bay Water Co., supra, at p. 496, 10 P.2d 780.) The Downey case recognizes this condition by the following language, at page 797, 21 Cal.Rptr. at page 376:
'All water which has been dedicated to public use is imposed with a trust and the beneficiaries of that trust are the users of the waters; thus the transferee of a water company or a water system has the same duties and obligations as the transferor, and the inhabitants of the district have the right to receive water from the city to the same extent they formerly had [citation]; and the city must assume the duty to supply water without discrimination.'
Appellant city recognizes its obligation to furnish water to the present users of respondent district. The complaint alleges:
'The functions, rights and properties of the district sought to be taken and acquired herein shall be taken and acquired subject to all the obligations, duties and burdens of appurtenancy of the district to acquire, produce, store, carry and deliver water to the persons presently entitled to receive the same; to contractual obligees and other beneficial users receiving water in accordance with their lawful rights; and further subject to all existing lawful and valid obligations of the district, including, but not limited to obligations owed to bondholders.'
Turning now to the reasons given by respondent in support of its contention that appellant city has no implied power to condemn an irrigation district, we recur to the proposition stated earlier, that the general rule of strict construction of statutes delegating the power of eminent domain requires the power of a city to condemn an irrigation district to be expressly conferred.
Additionally, respondent rests heavily upon Code of Civil Procedure section 1241, subdivision 3. This section delineates certain prerequisites to the taking of property by eminent domain. Subdivision 3 is concerned with the taking of public property, and it is directly applicable to the issue before us. It begins by stating the basic qualifying condition that before any property may be taken it must appear that: 'If already appropriated to some public use, that the public use of which it is to be applied is a more necessary public use; * * *.' The section then goes on to designate governmental entities that may condemn public property and the kinds of public property subject to being taken. In pertinent part it provides that 'property of any character, whether already appropriated to public use or not, including all rights of any nature in water, owned by any person, firm or private corporation may be taken by a county, city and county, or The language of section 1241, subdivision 3, quoted above, clearly authorizes the taking of property already appropriated to a public use, subject only to the requirement that it be taken 'a more necessary public use.' It is true the section does not expressly mention that property of an irrigation district may be condemned but, significantly, neither does it exempt an irrigation district from condemnation for 'a more necessary public use.' Respondent district argues that although the section confers the power to condemn public property, the concluding paragraph of the section qualifies and restricts the entire subdivision, including the language quoted above. This retrictive paragraph reads as follows:
'But private property appropriated to the use of any county, city and county, incorporated city or town, or municipal water district, or irrigation district, or transit district, or rapid transit district, or public utility district, or water district, may not be taken by any other county, city and county, incorporated city or town, or municipal district, or irrigation district, or transit district, or rapid transit district, or public utility district, or water district, while such property is so appropriated and used for the public purposes for which it has been so appropriated.' (Emphasis added.)
In our view the first three words of the delimiting paragraph 'But private property' limit its application to private property appropriated to a public use. The words 'such property' at the end of the paragraph refer to the words 'private property' at the beginning of the paragraph. The property of an irrigation district is not private property; it is public property held in trust for the inhabitants of the district. (Water Code § 22437; People ex rel. City of Downey v. Downey County Water Dist., supra, at p. 796, 21 Cal.Rptr. 370.)
Although we conclude that respondent has misinterpreted the effect of the final paragraph of Code of Civil Procedure section 1241, a word must be said about the case of County of Marin v. Superior Court, 53 Cal.2d 633, 2 Cal.Rptr. 758, 349 P.2d 526, relied upon by respondent. In Marin the Supreme Court held that a municipal water district cannot, under the power of eminent domain, condemn a highway under the jurisdiction of a county. Some of the language used in the opinion lends color to respondent's argument. But when Marin is construed in the light of all of the facts of the case, and in the light of reasons given by the Court for its decision, application of the opinion narrows to private property appropriated to a public use. In the first place, the holding in Marin that a county water district cannot condemn a public highway under county jurisdiction is consistent with the 'more necessary public use' principle, which is stated conversely in Code of Civil Procedure section 1241, subdivision 3: '* * * the use thereof for a public street or highway * * * shall be deemed a more necessary use than the public use to which such property has been already appropriated; * * *.'
A second and equally pertinent distinction is that the highway sought to be condemned in Marin was part of a state and federal highway system and both state and federal funds were being used to maintain it. The question of state and federal sovereignty entered into the decision, a circumstance not present in our case.
Third, and perhaps most persuasive, is that the land itself was largely in private ownership, the state or county holding only an easement for highway purposes. Clearly, the privately-owned portion of the highway came within the delimiting final paragraph of section 1241, forbidding the condemnation of private property appropriated to a public use. It has no application here to the condemnation of public property. (See Woodland School Dist. of Yolo County v. Woodland Cemetery Assn., 174 Cal.App.2d 243, 344 P.2d 326; Marin County Water Co. v. County of Marin,
Finally, respondent appears to be apprehensive that if appellant is permitted to condemn an irrigation district in the absenc of express statutory authorization, then irrigation districts may be subjected to indiscriminate condemnation by cities. At first blush the argument seems substantial but, upon reflection, respondent's fears prove to be without foundation. First, Code of Civil Procedure section 1241, subdivision 3, governing the taking of property already appropriated to public use, requires proof that the proposed taking is for a more necessary public use. (Woodland School Dist. of Yolo County v. Woodland Cemetery Assn., supra, at pp. 245-246, 344 P.2d 326.) A city cannot condemn an irrigation district unnecessarily or purely for the purpose of hoarding water which an irrigation district may put to better use. (Water Code § 106.5; Miller & Lux v. San Joaquin Light & Power Corp., supra.) Second, irrigation district property is held in trust for the users, and upon condemnation a city takes the property subject to that trust. (People ex rel. City of Downey v. Downey County Water Dist., supra.) The inhabitants or users of an irrigation district are protected from the loss of their water even though a city condemns the district. (City of South Pasadena v. Pasadena Land & Water Co., supra; Coulter v. Sausalito Bay Water Co., supra; City of Riverside v. Malloch, supra; San Bernardino Valley Municipal Water Dist. v. Meeks & Daley Water Co., supra.)
Discussions concerning the nature of eminent domain have had much to say about sovereignty but, as we view it, there is a tendency to confuse eminent domain, an inherent attribute of sovereignty, with sovereignty itself. Setting aside historical thories of its origin and viewing sovereignty pragmatically in the posture of a democracy, it is the power and the will of the people of the State of California to do those things necessary to perpetuate the state in the best interests of the people. The question arises here whether the interests of sovereignty, that is, the best interests of the people of the State of California, would be served by taking the broad view that the power of a city to condemn an irrigation district is implied, or to adopt a strict construction and deny that the power exists. We take the broader view. To hold otherwise would circumscribe the growth and development of cities.
If it be doubtful whether the development of cities is of major concern to the sovereign people, we refer to the text, 1 McQuillin, Municipal Corporations (3d ed.). From section 1.01, pages 4-5, we learn that:
'Of all of the proclivities of mankind in recent generations, the massing of peoples in populated communities is one of the most impressive. It is an outstanding social fact of modern times * * *.
'The formation and everyday activities of centers of population have been of controlling importance in the progress of mankind. The chief advance in all lines of human endeavor has been through the nurture and growth of urban life. The leading city has ever been the type of culture. The urban community has played the chief part in human affairs, and has in a greater measure than any other factor, determined the destiny of the human race. The city has been the dominating influence in directing the course of history.'
Conditions under which water was appropriated in the early days of California differed, sometimes greatly, from conditions today. Occasionally an irrigation district appropriated or otherwise acquired most of the available water near a small town. A future conflict between the water needs of the town and the surrounding area was not foreseen but, as towns grew, particularly after World War II, their water needs also grew. There are instances of sparsely settled agricultural regions becomming metropolitan areas within the lifetime of a single In this case appellant city has pleaded, and for the purposes of ruling on a demurrer we accept as true, that:
'The city presently possesses no water supply and no water service facilities. The only water supply and water service facilities available to the city are those possessed by the district. The only supply of water for domestic purposes presently available to the city and its inhabitants is wholly possessed, administered, operated and controlled by the district.
'* * *
'The controlling majority of the board of directors of the district, by their ability to control the administration and policy of the district, control the sole water supply of the city and its inhabitants and thereby control the expansion, growth and development of the city for the benefit of the district and not for the benefit of the city.
'* * *
'Public convenience and necessity require the acquisition and taking by the city, of the right to administer and operate all of the public functions of the district for the purpose of obtaining, insuring, safeguarding and enlarging an adequate domestic water supply for the present and future needs of the city and its inhabitants.'
This is not to suggest that cities either have or should have the power to develop a water supply by depriving present users of their rights to water. In those instances, however, such as here, where the growth and development of a city can be facilitated by obtaining a source of water while at the same time preserving the rights of the water users in the district that is being condemned, no purpose is served in law or reason by giving a nerrow, restrictive interpretation to Code of Civil Procedure section 1241, subdivision 3. This conclusion is entirely consistent with the exercise of eminent domain in water cases. An irrigation district such as defendant here is empowered to condemn a private or mutual water company if a public necessity can be shown. (Code Civ.Proc. §§ 1238, 1241.) We hold simply that a city likewise can condemn an irrigation district if a more necessary public use can be shown. (Code Civ.Proc. § 1241, subd. 3.) In each instance the right of the users to receive water remains unchanged.
Respondent's final contention need not detain us long. It is that no specific provision is made for a city in a condemnation proceeding to take over personal property used by an irrigation district to carry on its business. We think authorization is found in Code of Civil Procedure section 1238, which empowers a city to condemn 'ponds, lakes, canals, aqueducts, reservoirs, tunnels, flumes, ditches, or pipes, lands, water system plants, buildings, rights of any nature in water, and any other character of property necessary for conducting or storing or distributing water for the use of any county, incorporated city * * *.' (Emphasis added.)
This question has never prevented the condemnation of a private or mutual water company by a governmental entity, nor a city from absorbing a county water district by merger. (People ex rel. City of Downey v. Downey County Water Dist., supra, at p. 804, 21 Cal.Rptr. 370.) We view the matter as a practical problem to be resolved by and during the condemnation action.
We conclude that the trial court has jurisdiction to try the action brought by appellant city to condemn respondent irrigation district; further, that if is the duty of the court under the provisions of Code of Civil Procedure section 1241, subdivision 3, to determine whether the proposed taking The judgment is reversed.
CONLEY, P.J., and R. M. BROWN, J., concur.