Northern Light & Power Co. v. Stacher

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

OPINION ON REHEARING. We still adhere to the conclusions reached in the former opinion for the reasons there given.

We invited further consideration of two questions — first, Does the complaint state sufficient facts upon the issue of the necessity for the taking? and, second, Does the statute authorize the taking of water for electric power, light and heat purposes?

In addition to what is said in the former opinion, it may not be amiss to make some further observations upon these two questions.

First, as to the question of necessity. Section 1241, Code of Civil Procedure, provides, as we have seen, that — "Before any property can be taken, it must appear: 1. That the use to which it is to be applied is authorized by law; 2. That the taking is necessary to such use." The point urged is that the complaint does not allege facts sufficient to present the issue of necessity; that the averments do not meet the requirements of the law without showing: 1. That the wants and needs of the people require the production and supply of electricity in excess of the present supply; 2. That the present equipment controlled by appellant is insufficient to meet such needs; 3. That the particular property sought is available and can be and will be used for the public purposes mentioned and that it is necessary to take the property to meet the public needs.

It is alleged that a large number of people are without electricity whose needs in that regard appellant alleges its desire and purpose to supply, and to this end that it is necessary to condemn the property sought. Electric light and power companies, like other public service corporations, have a right and it is their duty to anticipate future needs of the public. They cannot reasonably be required to limit their preparations for future demands by their ability to provide for them out of their present supply. New uses for electricity are constantly being discovered and applied. The supply which in the same community would at present be sufficient might be insufficient in a short time. Nor can public service corporations state with certainty to what extent their facilities to serve the public will be availed of. Neither can they determine, nor should they be required to determine in advance, and set forth in their complaint that their present equipment is insufficient to meet the needs of the people. It is, of course, required that the particular property sought be available and can be used for the purposes desired and also that it is necessary to meet the public needs. But these are matters the particular facts in support of which are evidentiary rather than subjects of pleading. In Spring ValleyW. W. v. Drinkhouse, 92 Cal. 532, [28 P. 681], and in CentralPacific R. R. Co. v. Feldman, 152 Cal. 309, [92 P. 849], cited by respondent, it was the evidence necessary that was being considered and not the pleadings. The complaint is set out quite fully in the original opinion and its averments need not be here repeated. They seem to us sufficient to present the issue of necessity for the taking. The burden of establishing this issue is upon plaintiff, and it was not required of plaintiff to set forth in its complaint the evidence on which it relies to prove the alleged necessity. This evidence may or may not be found sufficient when subjected to proper test at the trial, but we do not think that the burden is upon plaintiff to present all the facts in its complaint in order that this test may be fully and properly determined on demurrer.

The more serious question urged is, Does the statute authorize the condemnation of property by electric power, light and heat companies, under any condition of facts? Respondent denies to such corporations such power. The claim is that while they may condemn property for "canals, reservoirs, dams, ditches, flumes, aqueducts and pipes and outlets, for storing and discharging water for the operation of machinery for the purpose of generating and transmitting electricity for the supply of mines (and for many other specified purposes) with electric power," as set forth in subdivisions 12 and 13, section 1238, Code of Civil Procedure, they cannot condemn water, without which the canals, reservoirs, etc., would be useless, but must acquire the water by appropriation or purchase; that they may condemn the means whereby water may be used but not the water itself. This denial, of course, extends to all persons or corporations, municipal or otherwise, to acquire water in any other method than by appropriation or purchase for such purposes, however imperative the need of the public. In our former opinion we endeavored to show that water is property and may be taken like other property. It is conceded now that water is property and may be taken for purposes authorized by law, but the claim is that it is not so authorized in terms or by implication in subdivisions 12 and 13 above referred to; that in neither one of these subdivisions is water expressly mentioned "for power purposes or for generating electricity as one of the uses of the power company for which condemnation may be made."

Section 1238 provides that, "subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following uses." Then follows an enumeration of the uses, among them the uses mentioned in subdivisions 12 and 13. The property which may be taken is classified and enumerated in section 1240, and, as we have held, includes water and riparian rights to water. Section 1238 declares: "The right of eminent domain may be exercised in behalf of the following uses," and among them are canals, reservoirs, etc., "from sources other than a navigable lake," for "supplying, storing and discharging water for or in connection with the operation of machinery, for the purposes of generating and transmitting electricity," etc. If water may be taken and canals, reservoirs, etc., may be taken for supplying, storing and discharging water, it seems to us that water may be taken to be used in canals, ditches, pipes, etc., or stored in reservoirs for the uses enumerated. The limitation upon the taking of water is found in section 1238 and the taking must be for one of the uses authorized by that section; and if water is sought under eminent domain the power may "be exercised inbehalf of the" uses enumerated. When the statute says that land may be condemned (section 1240), the right to take it for canals, reservoirs, etc., i. e., "in behalf of the following uses," is found in section 1238 Water is as necessary for the uses and purposes mentioned in subdivisions 12 and 13 as is land. And land is therein mentioned only in connection with the site on which to erect the machinery to generate electricity. When the statute declares canals, reservoirs, etc., to be public uses, it does not mean completed or already constructed canals, reservoirs, flumes, pipes, etc.; it means the right to take land to be used for the purpose of constructing these agencies or instrumentalities "for supplying, storing and discharging water" for the purposes named. Respondents' contention, carried to its logical conclusion, would deprive the corporation of the right to condemn land for canals, reservoirs, ditches, etc., because land is not expressly mentioned, and would confine the right to condemn only completed canals, reservoirs, etc. Obviously this cannot be the true construction to be given the statute. Yet water is as essential to the use of canals, reservoirs, etc., as is land; each is useless without the other. Reading sections 1238 and 1240 together, they mean to say this: "Water may be taken by the right of eminent domain in behalf of the following public uses, namely, canals, reservoirs, etc., in connection with the operation of machinery, for the purpose of generating and transmitting electricity."

The case is quite supposable where certain land is susceptible of being utilized as a reservoir, and may be indispensable to the success of plans for furnishing power with which to generate electricity for the purposes mentioned in the statute. The owner of this land may have it in a high state of cultivation under irrigation from a stream of water flowing through it which he has appropriated for such use. To convert this land into a reservoir must necessarily deprive the owner of both land and water and in assessing the damage, in taking the land, the damage would be enhanced by the water appropriated with it. In such case the water is appurtenant to the land and would be taken with it. The statute gives the right to take the land for a reservoir and this right would not be affected because it also involved the taking of water with it.

Somewhat similar provision is made by subdivision 3 of section 1238, for the exercise of eminent domain "in behalf of . . . ponds, lakes, canals, aqueducts, reservoirs . . . for conducting or storing water for the use of the inhabitants of any county, incorporated city, or city and county, village or town." Respondents' contention would prohibit the taking of water "in behalf of" these objects, which it seems to us would be no less violative of the intention of the statute than that sought to be given subdivisions 12 and 13.

In St. Helena Water Co. v. Forbes, 62 Cal. 182, [45 Am. Rep. 659], where sections 1238 and 1240 were under review, and where it was held that water might be taken for the purpose of supplying the inhabitants of a town, Mr. Justice Myrick very clearly elucidated the question. He said: "The land through, over, and upon which pipes, aqueducts, flumes and ditches may be constructed or laid is not used by the public; the corporation uses the land for the conveying of water; the water, after having been conveyed, is taken by the public, and at that point, strictly speaking, is where the public use commences; but both the water and the land are taken, to the end that the public may be supplied with the one by the use of the other. In this case the plaintiff has already acquired the one, viz., places for its pipes, etc. (which are worthless and serve no purpose without water), and now seeks to acquire the necessary water, such water, when acquired, to be used in behalf of, for the benefit of, to the interest of, for the behoof of, ditches, etc., for conducting water for the use of the inhabitants of a village. (See Worcester's Dictionary, 'Behalf.')" In the same case Mr. Justice Ross said: "There can be no sort of doubt that the supplying of the inhabitants of a town with pure fresh water, is one of the 'public uses' in behalf of which the legislature has declared the right of eminent domain may be exercised. (Code Civ. Proc., sec. 1238)" Following this declaration that the supplying of water to the inhabitants of a town is a public use (subd. 3 of sec. 1238, Code Civ. Proc.), the court further says: "It is equally clear that the plaintiff is authorized to exercise the right of eminent domain in behalf of such use. Section 1001 of the Civil Code provides: 'Any person may, without further legislative action, acquire private property for any use specified in section 1238 of the Code of Civil Procedure, either by consent of the owner or by proceedings had under the provisions of title VII, part III, of the Code of Civil Procedure (relating to eminent domain); and any person seeking to acquire property for any of the uses mentioned in such title is an agent of the state, or a person in charge of such use, within the meaning of those terms, as used in such title.' " The opinion then proceeds to show that water, which was the property in question, "comes within the category of real property."

In Pasadena v. Stimson, 91 Cal. 238, [27 P. 604], it was held, under section 1001 of the Civil Code, that private property might be taken for any use specified in section 1238, Code of Civil Procedure. So held in Santa Cruz v. Enright,95 Cal. 105, [30 P. 197], both of which cases are referred to approvingly in City of Los Angeles v. Leavis, 119 Cal. 164, [51 P. 34]. We confess our inability to escape the simple logic of these cases, which is, when reduced to the simplest statement, that water is property and may be taken "in behalf of" any of the uses specified in section 1238, Code of Civil Procedure; and that the objects and purposes of plaintiff constitute a public use under that section. (See Shasta PowerCo. v. Walker, 149 Fed. 568; later, after trial, as reported in 160 Fed. 856, 87 C. C. A. 660; paragraphs quoted in our first opinion.)

The judgment is reversed, with directions to overrule the demurrer.

Burnett, J., and Hart, J., concurred.

The following is the opinion of the district court of appeal, rendered on the 17th of December, 1909, which is approved in the foregoing opinion on rehearing: