Marr v. City of Glendale
Marr v. City of Glendale
Opinion of the Court
Appeal from a judgment denying to the plaintiff a writ of mandate. Plaintiff brought this action for the purpose of compelling the city of Glendale and its officers to furnish her water for domestic and other uses. Her complaint contained three causes of action, the first and third of which only were relied upon at the trial. Under the first alleged cause of action the right claimed was that of a property owner who, having been regularly served with water by the vendor thereof, is arbitrarily cut off from the supply. The right claimed under the third alleged cause of action was different and depended mainly upon the question as to whether an inhabitant of a city, which city is engaged in furnishing water for the use of such inhabitants, can in every case compel the municipality to connect the property of such inhabitant with its supply pipes. In the first alleged cause of action plaintiff set forth that a number of years prior to the date of the commencement of the action her property had been connected to a four-inch water main owned by the Glendale Consolidated Water Company, which main was *750 in turn supplied from a certain stream flowing in Verdugo Canyon; that this pipe was disconnected from the stream several years prior to the commencement of the action and that subsequent to its being so disconnected the city of Glendale acquired all the water rights and the distributing system of said Consolidated Water Company, and that subsequent thereto plaintiff’s property had been without water, except such as was brought upon it by use of a pail. In the third cause of action facts were set forth showing that the city of Glendale had engaged in the business of supplying water to its inhabitants and had acquired a water system for that purpose. The answer denied that plaintiff’s property was not provided with a water service, although it was admitted that this service was not being given .by the city of Glendale. The preliminary facts, as stated by the complaint, were admitted and an affirmative defense was made which was available in answer to both the first and third causes of action. In this defense it was alleged as follows: “The defendants allege that the property mentioned in plaintiff’s petition is located in the Verdugo Canyon, more than one mile north and east of any of the distributing lines used in connection with the water system of the city of Glendale; that said property is located at an elevation of more than two hundred feet above any reservoir owned by said city from which water could be furnished to her from its present distribution system. That in order to furnish the plaintiff with water for domestic use the city of Glendale would be compelled to construct a reservoir somewhere in the vicinity of plaintiff’s property at such an elevation as is necessary to furnish proper pressure, and would then have to lay and conduct pipes from such reservoir to plaintiff’s said property, all of which would amount to a large expenditure on the part of the defendant City of Glendale, such as would not be justified from any income that could be derived from such construction; that at this time and for many years prior thereto the Forest Grove Land and Water Company and its predecessors in interest, who are the original owners and subdividers of the tract of land on which plaintiff is located, owns, operates, and conducts a distributing system in said tract and that plaintiff’s said property is bounded on the east and south by the distributing line laid in the street abutting plaintiff’s said property, from which line the plaintiff could receive adequate water service; *751 that said Forest Grove Land and Water Company’s system was constructed for the express purpose of furnishing this plaintiff and other residents of this vicinity with water for domestic uses, and defendants are informed, and upon said information and belief allege, that the reason why plaintiff is not now receiving water from said Forest Grove Land and Water Company is that she has been disconnected by said company by reason of nonpayment of her water bills. Defendants allege furthermore that they could not furnish the plaintiff water service on her said property without paralleling the lines of said private water company, and in event this defendant should be required to so parallel the lines of said water company, it would be necessary for this defendant, City of Glendale, to charge much more for such service than she would be required to pay to said private water company for similar service; that the defendant City of Glendale has never furnished any water to any residents of the city of Glendale located in said Verdugo Canyon for the reasons hereinabove set forth.” The court found the facts in accordance with this special defense, which showed that appellant’s property had available to it adequate water supply and service pipes, and showed, contrary to plaintiff’s allegations, that when the four-inch pipe had been disconnected from the stream, it was supplied with water from another source and that that supply had subsequent thereto been continuous and adequate and that the pipes carrying the same immediately abutted plaintiff’s property; it showed that for the city to be compelled to extend its system to the property of appellant would cause the municipality great expense. It further showed that plaintiff could receive all the water she needed by merely complying with the rules and regulations of the company owning the supply pipe abutting her property, which rules and regulations we must assume were reasonable.
Plaintiff makes no contention that she had any right to the use of the waters of the particular stream from which the four-inch pipe passing her property originally received its supply; in other words, she had no right in any part of the water at any time. With that admission, and with the facts as pleaded in the answer and found by the court before us, we can see little reason to give any extended consideration to the claim made under the first alleged cause of action.
The judgment appealed from is affirmed.
Conrey, P. J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 19, 1919.
All the Justices concurred, except Lennon, J., who was absent.
Reference
- Full Case Name
- WINIFRED F. MARR, Appellant, v. CITY OF GLENDALE Et Al., Respondents
- Cited By
- 3 cases
- Status
- Published