McCrary v. Beaudry

Sharpstein, J. This is an appeal from a judgment that a writ of mandate issue as prayed in the affidavit of plaintiff. The affidavit was properly treated as a complaint, which was demurred to by defendant on several grounds, the principal one of which is that it did not state facts sufficient to constitute a cause of action. The complaint shows with reasonable certainty r, that the defendant obtained from the city of Los Angeles per [121] mission to lay water-pipes in the streets of said city for the conveyance of water for his use and that of the citizens residing in what is known as “the hilly section” of said city, “to whom he might sell or give water.” That after obtaining such permission the defendant laid pipes in said streets and through them conducted water to said section, which he sold to the residents of said section, of whom the plaintiff was-1 one, at certain monthly rates, which the plaintiff paid until November, 1884, when the defendant, without any valid excuse for so doing, shut the water off from the plaintiff’s premises and refused to turn it on again. Appellant insists that the facts alleged are not sufficient to impose on him any duty or obligation to furnish the respondent with water. It appears sufficiently clear that appellant had appropriated water for distribution and sale, and that he had acquired and was exercising the right to collect rates from the inhabitants of the city of Los Angeles for the use of it; and the use of all water appropriated for sale, rental, or distribution is declared by the Constitution to be a public use; and the right to collect rates or compensation for the use of water to the inhabitants of any city is a franchise which cannot be exercised except by authority of and in the manner prescribed by law. (Const, art. xiv.) Whenever water is appropriated for distribution and sale, the public has a right to use it. That is, each member of the community, by paying the rate fixed for supplying it, has a right to use a reasonable quantity of it, in a reasonable manner. Water appropriated for distribution and sale is ipso facto devoted to a public use, which is inconsistent with the right of the person so appropriating it to exercise the same control over it that he might have exercised if he had never so appropriated it. In one part of the affidavit it is stated that affiant “has been paying the said Beaudry for said water at the regular rates established and demanded of affiant by said Beaudry,” and in another “that affiant has been paying said V. Beaudry for water for use on said premises for domestic and irrigating purposes during the eight months last past at the rate of §2.25 per month; and affiant alleges that he has been at all times, and is now, ready and willing to pay to said V. Beaudry the sum of money fixed as the established rate for use of water on said premises, [122] which he alleges was, and is now, the sum tendered as aforesaid, to wit, the sum of $2.25 per month, and that no greater sum has been, nor is now, demanded by said Beaudry for the use of water on said premises for domestic use and irrigating purposes.” Reading the two paragraphs together it appears that the rate established by appellant for supplying respondent with water was $2.25 per month, which he paid as long as he was supplied with water, and has at all times since been ready and willing to pay. The facts alleged in the complaint show to our satisfaction that the appellant was in the exercise of a franchise which he could not exercise except by authority of and in the manner prescribed by law, and that the law enjoined on him the duty, resulting from that trust, of furnishing respondent with water. The writ was issued according to the requirement of the Code upon the affidavit of respondent, the party beneficially interested, and such affidavit was as valid and effectual without the title of the action or proceeding in which it was made, “for any purpose as if duly entitled.” (Code Civ. Proc. § 1046.) The affidavit, in a case like this, may be treated as a complaint, and still remain an affidavit, to all intents and purposes. We think the demurrer was properly overruled. Judgment affirmed. Myrick, J., and Thornton, J., concurred.