THE SAN JOAQUIN AND KINGS RIVER CANAL AND IRRIGATION COMPANY, INCORPORATED (a Corporation), Appellant, v. JAMES J. STEVINSON (a Corporation), et al., Respondents, 164 Cal. 221

SHAW, J. This is an action to condemn property for public use. The plaintiff has been diverting water from the San Joaquin River and carrying it to lands in the San Joaquin Valley to be used for irrigation. It desires to divert an additional flow of five hundred cubic feet per second from the river into its canals for the same public use. This suit is begun to condemn the interest of the defendants in this additional quantity of water. At the close of the plaintiff’s case the defendant moved for a nonsuit and the same was granted by the court.

Judgment was rendered thereon and from this judgment plaintiff appeals. I. The first ground of the motion for nonsuit was that the use to which the water proposed to be condemned and taken is to be devoted is not one of the public uses in behalf of which, under

section 1238 of the Code of Civil Procedure, the right of eminent domain may be exercised. It is conceded by plaintiff that the power of eminent domain is vested in the state, and that no person or corporation can avail himself or itself of that power, even in aid of a recognized public use, unless the state has granted to such person or corporation a right to exercise the power for the particular use proposed. There must be a statute conferring the power, either expressly or by necessary implication, and the proposed use must be one which comes within the terms of the grant. (Southern Pacific R. Co. v.

Southern C. R. Co., 111 Cal. 227, [43 Pac. 602] ; Moran v. Ross, 79 Cal. 160, [21 Pac 547].) It is settled that the use of water for sale, rental, and distribution to the public generally is a public use. The only question for decision under' this point is whether or not the statute confers the right of eminent domain upon a person who desires to condemn property to be devoted to such use.

The complaint alleges and the proof shows that the plaintiff owns two large canals leading out of the San Joaquin River into the country lying west of the river and extending from the county of Fresno through the county of Merced into the county of Stanislaus. One of these canals is seventy-two miles long and the other fifty-two miles long. It also has distributing canals leading therefrom to the lands in the vicinity, for convenience of distribution, and it maintains a dam in the river to divert the water therefrom into the canals.

By this means it has been diverting water from the river and carrying the same into canals and selling it for irrigation, watering of stock and domestic uses “to the inhabitants of the counties of Fresno, Merced and Stanislaus, ” as it alleges.

It also appears that it desires to divert from said river into said canals an additional flow of five hundred cubic feet per second and to carry the same in said canals and devote it to the same public use in the same manner, and that along its canals there is sufficient land upon which irrigation is necessary, the owners of which desire to use said water, to consume said additional quantity. The point where the canals begin and their present terminus are described with substantial accuracy.

The canals are themselves permanent landmarks and, consequently, the termini being described, the.situation and location of the canals, the place of use of the water to be eondemned and the territory to be served therewith, are all thereby for all practical purposes properly pleaded. We think this sufficiently shows that the plaintiff desires to take the water-rights sought to be condemned in behalf of the public use indicated by subdivision 4 of

section 1238 of the Code of Civil Procedure by the words “supplying mines and farming in neighborhoods with water.” While there is a general allegation in the complaint that the water is to be “sold to the inhabitants” of the three counties named, the specific facts alleged as to the method by which the water has been diverted, carried, and distributed and by which it is proposed to take, carry, and distribute the additional water, the place of use designated in the complaint and shown by the evidence and the purposes to which it is to be applied, show with reasonable certainty that the water is, in point of fact, to be supplied to farming neighborhoods, or “to farming in neighborhoods,” as the last amendment to the

section expresses the idea. The fact that there may be several separate farming neighborhoods along the very extensive canals of the plaintiff does not destroy its right. That a person engaged in supplying several such neighborhoods should have the right of eminent domain to obtain property therefor was evidently the object contemplated by the last amendment inserting the word “in” in the phrase “farming in neighborhoods.” .

It may be that without this word the right to condemn for more than one neighborhood would have existed, but the insertion of this word implies that the main idea was the supplying of farming operations with water and that more than one neighborhood might receive water from the same system of works. The law does not require, in order to maintain an action to condemn water for public use, that the boundaries of the territory to which it is to be dedicated shall be alleged and proven with absolute certainty. The nature of the use is such that this could not be done.

A railroad, a highway, or a public building, has a fixed location to which all who desire to use them must come. It is not so with water devoted to public use. In that case the public service consists in conducting the water to the consumers, or to some convenient place,, where they can obtain it. Main canals are built from the source of supply to and through the territory to be supplied and both the landowners whose lands abut thereon and those who can run a private ditch thereto are allowed to have the water at the fixed rates.

The territory is also usually enlarged by means of lateral distributing canals, which are also available for use in the same way. Not every landowner who could do so may apply for the water. Those who take it one year may not do so the next and their portions may be furnished to others. It is also the fact that after the lower levels are saturated by a few years continuous irrigation such land will require much less water than before and the same quantity of water may then be distributed over a much larger territory.

For these reasons it is impossible to say, in advance, or at any particular time, precisely what will be the boundaries of the territory served or to be served with the water. The interests and protection of the persons whose water-rights are to be condemned for public use, do not make it necessary to give such precise description. The location of the proposed canal being shown, the situs of the proposed use is thereby fixed with sufficient accuracy. It is perhaps unnecessary to add that a right to divert water to be allowed unnecessarily to run to waste, cannot be acquired, even by a judgment of condemnation.

Such judgment, when given, would afford no protection for such a taking.

We think also that the use described in the complaint is one for which the right of eminent domain is given in subdivision 3 of said section, as “canals, aqueducts, reservoirs, tunnels, flumes, ditches, or pipes for conducting or storing water for the use of the inhabitants of any county, . . . and all other public uses for the benefit of any county, ... or the inhabitants thereof, which may be authorized by the legislature.” This language necessarily implies, not only that property may be condemned for the canals and conduits mentioned, but that water may also be taken to be carried in the canals and ditches.

This precise question was decided in Northern etc Co. v. Stacher, 13 Cal. App. 409, [109 Pac. 896], by the third district court of appeal. The question is elaborately and ably discussed and the decision received the approval of this court, as is evidenced by the fact that it denied an application for a rehearing thereof.

It follows from this decision that water may be condemned and taken for public use by any person or corporation proposing to apply it “to the use of the inhabitants of any county.” The defendants claim that this subdivision does not confer the right of eminent domain for the use mentioned unless the person in charge of the use proposes to supply all of the inhabitants of the county, and that if the taking is for the use of a particular district or territory of the county only, it is not authorized under this subdivision.

There can be no doubt that the furnishing of water generally to the inhabitants of a particular

section of the county is a public use. It is not even necessary, in order to constitute a public use, that the water should be obtainable by all the inhabitants of the immediate territory to which it is taken. It may be a public use, although all persons within that territory cannot enjoy it. It is sufficient if all who are capable of enjoying it have an equal right to it. For example, it has been held that water devoted to the use of all the landowners within a specified territory, on equal terms to all, and open to all, for the irrigation of their lands, is devoted to a public use. (Fallbrook Irr. Dist. v.

Bradley, 164 U. S. 161, [41 L. Ed. 369, 17 Sup. Ct. Rep. 56] ; Merrill v. Southside I. Co., 112 Cal. 426, [44 Pac. 720].) Where a statute “is fairly susceptible of two constructions one leading inevitably to mischief or absurdity, and the other consisting of sound sense and wise policy, the former should be rejected and the latter adopted.” (In re Mitchell, 120 Cal. 386, [52 Pac. 800].) “A construction should not be given to a statute, if it can be avoided, which will lead to absurd results, or to a conclusion plainly not contemplated by the legislature.” (Merced Bank v.

Casaccia, 103 Cal. 645, [37 Pac. 649].) The

section is also subject to the rule that its provisions are to be liberally construed, with a view to effecting its objects and to promote justice. (Code Civ. Proc., sec. 4.) It is a fact, of which the court may well take judicial notice, that there is no county in the state in which it is practicable to serve all of its inhabitants with water by means of one system of works. The topography will not permit it. The city and county of San Francisco, if it should be classed as a county, is perhaps an exception. But it is classed separately in the subdivision referred to.

If this part of the statute is to be given the effect here claimed the result is that it will be wholly ineffectual. In the entire history of the state, it is safe to say, no person or corporation has ever seriously and in good faith proposed to supply all of the inhabitants of any county with water through one system of works or from one source. No such proposition ever will or can be honestly made. The result of this

interpretation therefore will render the statute wholly ineffectual as well as absurd. In considering a statute it is necessary to asume that the legislature intended it to have some effect. There must have been some purpose in view which led to its enactment. The obvious purpose of this

section as a whole was to confer the right of eminent domain upon persons engaging in public service for the various purposes described. This particular clause was intended to encourage and assist those proposing to establish systems of waterworks for the supplying of the public. It was to facilitate the transportation of water from a source where it was comparatively useless to places where it would be useful and would promote the general welfare and prosperity and of furnishing it at such places to those in need of it. In order to further this object the statute should have sudh

interpretation as will make it effectual for that purpose if it is reasonably possible to do so. It will be noted, therefore, that the clause does not use the word “all” in connection with the word “inhabitants.” The phrase is “for the use of the inhabitants of any county.” According to a well recognized usage this description would be filled by one who supplied water for the use of the inhabitants of a considerable part of the. county although he did not or could not supply it to all the inhabitants thereof.

The language may be as well applied if the word “inhabitants” is taken as descriptive of the character or status of the beneficiaries as it would be if the word is taken as designating the number to whom it is to be supplied or the area to which the use must extend. But a more obvious purpose in the use of the phrase is seen when the clause is taken in connection with the preceding clause of the subdivision.

The two clauses together read as follows: “Public buildings and grounds for the use of any county, incorporated city, or city and county, village, town or school district; ponds, lakes, canals, aqueducts, reservoirs, tunnels, flumes, ditches or pipes for conducting or storing water for the use of the inhabitants of any county, incorporated city, or city and county, village or town.” The uses mentioned in the clause preceding the semicolon are those for organized public corporations and are for purely public purposes; those in the second clause are for the individual members of the community for their individual private use and for the benefit of their persons or their property.

It was to distinguish private individuals from public corporations that the word “inhabitants” was used in the second clause, and not for the purpose of expressing the idea that the takings mentioned in the second clause were to be limited to cases where all the inhabitants were to be the beneficiaries. It was intended to distinguish between a taking for the organized public and a taking for persons as members thereof.

In view of these considerations we think it should be held to be a sufficient compliance with the terms of this subdivision if the proposed use of water is for a part of the inhabitants of a county comprising a sufficiently large proportion of the inhabitants capable of using it in the particular territory “as to destroy its character as a private use, ’ ’ as was said in Lindsay v.

Mehrtens, 97 Cal. 678, [32 Pac. 802], The proof shows that the plaintiff proposes to distribute the water generally to the inhabitants of a very large area of the three counties mentioned, chiefly for the irrigation of their lands and also for domestic uses and for the watering of stock and incidentally to some towns and villages which have grown up along the routes of its canals. It is one of the largest irrigation enterprises in the state and serves water to over one hundred and fifty thousand acres of land.

We think the use it proposes to make of this water is one for which it is authorized to exercise the right of eminent domain under

section 1238. It is further suggested in this connection that the nonsuit was properly granted because there is a fatal variance between the allegations as to the extent of the use proposed and the proof thereof, in this: That the allegation is that the water is to be devoted to sale and distribution to the inhabitants of Fresno, Merced, and Stanislaus counties, whereas the proof shows that it can be sold and distributed only to inhabitants along the lines of its canals and wholly in the territory west of the river.

While there is a general allegation to this effect, as before stated, the specific facts alleged show clearly enough that the water is to be taken only to the lands on the west side. There is no substantial variance. 2. The plaintiff is a Nevada corporation. The defendants contend that its articles of incorporation do not designate the application of water to public use as one of its corporate powers, and further, that a foreign corporation cannot, under the laws of this state, exercise the power of eminent domain. For these -reasons they contend that the nonsuit was properly granted.

The articles state that the plaintiff corporation is formed and empowered to construct canals in California leading from the San Joaquin River, for the carriage of passengers and freight, and for the purpose of irrigation, and to supply water to the inhabitants of cities and towns in California. These powers are sufficient to authorize it to carry water in its canals to be devoted to public use for the purposes of irrigation, navigation, and commerce. The words ‘ ‘ any person, ’ ’ in

section 1001 of the Civil Code, includes any public or private corporation, as well as any natural person, and by the terms of the section, any such person may, “without further legislative action” acquire property by condemnation for any public use specified in

section 1238 of the Code of Civil Procedure, and in doing so becomes “an agent of the state” and a “person in charge of the use” for that purpose (Pasadena v. Stimson, 91 Cal. 248, [27 Pac. 604]). The state may authorize foreign corporations to exercise this right. (Gilmer v. Lime Point, 18 Cal. 255.) Foreign corporations have always been allowed to enter this state and do any business therein that is within their corporate powers. Their right to do so has been recognized and sanctioned by our statutes ever since April 4, 1870 (Stats. 1869-70, p. 881).

For all purposes of every business within their capacity they are classed with domestic corporations, provided they comply with the statutes allowing them to do business here, and a statute which by necessary construction confers powers upon corporations in general, is to be understood to confer that power upon foreign corporations doing business here as well as domestic corporations. The aforesaid

section would, therefore, appear to give them the right of eminent domain on the same terms as other persons and corporations. There would be no doubt of this proposition were it not for

section 407 of the Civil Code, expressly authorizing foreign corporations doing business as common carriers to exercise the right of eminent domain. The defendants claim that by the operation of the maxim expressio unius est exclusio .alterius, this section, by implication, takes away such a right from all other foreign corporations. The part of the

section relating to this subject is as follows: “Every rai.way or other corporation organized for the purpose of carrying freight or passengers under or by virtue of the laws of the United States, or of any state or territory thereof, may build railroads, exercise the right of eminent domain, and transact any other business which it might do if it were created and organized under or by virtue of the laws of this state, and has the same rights, privileges, and immunities, and is subject to the same laws, penalties, obligations, and burdens as if created or organized under and by virtue of the laws of this state.” The effect of this provision was considered by the district court of appeal for the third district in Western Union Tel.

Co. v. Superior Court, 15 Cal. App. 679, [115 Pac. 1091, 1100], an application for a writ of review. That court reached the conclusion that the right to exercise the power of eminent, domain was not thereby withheld from foreign corporations which were not common carriers. Upon petition for rehearing, this court declined to express any opinion on that question, saying that it did not affect the jurisdiction of the superior court, and that, therefore, it could not be material in certiorari. Upon considering the question more fully, we agree with the district court that

section 407 was not intended to prevent other corporations than those described therein from exercising the right of eminent domain. The

section is a mere revision and codification of

section 1 of the act of 1880 (Stats. 1880, p. 21). The codification was made in 1905 (Stats. 1905, p. 631). Some verbal changes are made, but it is essentially the same, and the particular provision in question is not altered at all.

Section 1001 of the Civil Code and

section 1238 of the Code of Civil Procedure were enacted in 1872. Their effect, as we have seen, was to confer this right upon all corporations, foreign or domestic, public or private, for the particular uses designated in

section 1238. The act of 1880 did not purport to take away any right of this character. It was an entirely independent enactment and it is clear that prior to its codification it would have no effect whatever upon the construction of sections 1001 and 1238 aforesaid. The maxim expressio unius, etc., is not of universal application. “What is expressed is exclusive only when it is creative, or in derogation of some existing law, or of some provision in the particular act. The maxim is applicable to a statutory provision which grants originally a power or right.

In such cases the power or right originates with the statute and exists only to the extent plainly granted. ’ ’ (2 Lewis Sutherland’s Statutory Construction, sec. 491.) If this statute had been the only one on the subject there would be good reason for saying that no other corporations would have the power, for the power would remain in the state except as granted by statute. But as the power had been given to all other corporations by statutes of which this was not an amendment, the reason for the application of the maxim is altogether wanting.

Furthermore, the incorporation of the statute in the code cannot be said to have a greater effect upon its meaning than an amendment thereof would have had. Where a statute is amended, the parts which are not altered are to be considered as having been the law from the time when they were enacted (Pol. Code, sec. 325). Hence, the meaning and effect of the statute of 1880 would not be changed by putting it in the code, and if it did not repeal or modify the pre-existing law before its codification, it would not have that effect afterward. 3.

The objection that the proof showed that the water was not necessary to public use, except for a portion of the year, if it ever was of any force, was removed by the filing of an amended complaint wherein the taking of the water is limited to the season when it is actually required, the dates being specifically stated. 4. There is no merit in the proposition that the plaintiff cannot condemn the full quantity asked for because a part of it would be lost in transmission to the place of use by seepage and evaporation.

Some loss in this way is inevitable and it must be considered a part of that which is necessary to be taken to supply the actual use proposed. There was evidence to the effect that there would be no loss of this character which could be prevented by reasonable care or precaution. 5. One ground of the motion was that it appeared that the plaintiff’s intention was to devote the water to be condemned, or a part of it, to private use. There seems to be no real foundation for this claim.

Prior to the beginning of this action the plaintiff was, and for many years had been, diverting from the river a flow of seven hundred and sixty cubic feet per second into its canals and selling the same for irrigation' and other purposes. To this quantity it had acquired a right. A part of it was delivered to Miller & Lux annually for a fixed price under a contract made in 1871 with its predecessor in interest, whereby said predecessor was paid some thirty thousand dollars for the building of the canals and acquired from Miller & Lux rights of way therefor.

There were subsequent changes therein, not important to the question. The plaintiff and its said predecessor had also been taking for several years the five hundred cubic feet per second the right to which is here sought to be condemned and had been devoting the same to public use, but neither of them had acquired any right to do so as against the defendants. This suit was begun to obtain that right.

Conceding but not deciding that the water delivered to Miller & Lux, under the contract of 1871, was taken for private use, it does not follow that the five hundred cubic feet here in controversy is to be taken for that purpose. The contrary is asserted by the plaintiff and there is nothing to show that it is not stated in good faith. The plaintiff is already bound by the contract of 1871 to furnish the Miller & Lux water and it has done so out of the seven hundred and sixty cubic feet to which it had a right. The present proposed taking is an altogether distinct appropriation of an additional quantity.

This claim seems to be partly founded on the fact that the water is to be mingled together in the canals. This fact seems to be immaterial. It does not affect the public use of the five hundred cubic feet. If, after taking it, the plaintiff should convert it from public to private use such conversion could be prevented. But as there is no evidence of such intent and it cannot be anticipated in this way, the mere assertion that plaintiff may in the future wrongfully do so cannot defeat its right to the condemnation. 6. We think the lower court erred in permitting J. R Adams, W. D.

Adams, and the East Side Canal and Irrigation Company to become defendants to the action and to file answers to the complaint, and in refusing to strike out such answers on motion of the plaintiff. Perhaps such an error would not, in every case, be sufficient to require a reversal of the judgment. It might be that no substantial injury would ensue therefrom. We need not say whether it would be sufficient in this ease or not, since the judgment must be reversed for other reasons.

The complaint alleged that the property sought to be condemned was the interest of the Stevinson Company, as riparian owner of certain lands, in the five hundred cubic feet of water which plaintiff proposed to take for public use. The other original defendants had or claimed some lien upon the land of the Stevinson Company and claimed under that company. The above named intervening defendants did not claim under the Stevinson Company. They each claimed adversely to it.

Their claim was that they had, apparently by continuous adverse use, acquired from the Stevinson Company the right to divert from the river, at a point below plaintiff’s dam and above the Stevinson land, the identical five hundred cubic feet of water which plaintiff proposed to take and for which it proposed to condemn the Stevinson right. Calling it the same does not make it so, nor does the fact, if it be a fact, that the water is the same, that is to say, that if plaintiff did not take it, the same would be diverted by said interveners and would not reach the Stevinson land, make it the same right.

The condemnation of this water-right of Stevinson for the protection of plaintiff’s diversion, would not give plaintiff any right whatever against any other person and it would not at all affect the rights of the interveners. The plaintiffs taking had been interfered with by the Stevinson Company, or its predecessor in ownership of the land. Plaintiff desired to prevent such interference in the future by condemning the right in virtue of which the interference was made.

The interveners had no interest in the Stevinson land, or in the riparian rights pertaining thereto, which, alone, the plaintiff sought to condemn. It was this riparian right which was the subject matter of the litigation. The action was not a suit in equity to determine the title to the water, generally, or one in which a general adjudication of .such title could'be made. It was a special proceeding for a particular purpose— namely, to condemn the Stevinson right for the benefit of the plaintiff as the purveyor of the public use.

In such a controversy, third persons not interested in the land in subordination to or in common with the person whose right was sought to be taken, but claiming adversely, have no right to intervene under

section 387 of the Code of Civil Procedure. We have considered all the grounds stated in the motion for a nonsuit. As none of them is sustained, it follows that the court erred in giving judgment for the defendants. The judgment is reversed. Henshaw, J., Melvin, J., Lorigan, J., and Angellotti, J., concurred.