Title: California Water Service Company vs. Edward Sidebotham & Son, Incorporated
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 Material Information
Title: California Water Service Company vs. Edward Sidebotham & Son, Incorporated
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Language: English
Publisher: California Reporter, Vol. 37
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - California Water Service Company vs. Edward Sidebotham & Son, Incorporated (JDV Box 86)
General Note: Box 22, Folder 2 ( Groundwater - Old Florida and California Cases - 1900's ), Item 1
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Full Text










CALIFORNIA REPORTER


VOLUME 37


(oE Y NUMBER SYfSLM


CALIFORNIA WATER SERVICE COM-
PANY, a corporation, et al., Plain-
tiffs and Respondents,
v.
EDWARD SIDEBOTHAM & SON, INCOR-
PORATED, and Chandler's Palos Verdes
Sand and Gravel Company, Defendants and
Appellants,
Carson Estate Co., et al., Defendants
and Respondents.

CALIFORNIA WATER SERVICE COMPA-
NY, a corporation, City of Torrance, a mu-
nicipal corporation, Palos Verdes Water
Company, a corporation, Plaintiffs and Re-
spondents,
V.
CITY OF HAWTHORNE and Edward Side-
botham & Son, Incorporated, De-
fendants and Appellants,
Carson Estate Co., et al., Defendants
and Respondents.
Civ. 21155,21156.
Dihlrict Court of Appeal, First District,
Division 2, California.
Feb. 17, 1964.
11hcoaring Denied March 18, 1964.
Ilharing Denied April 15, 1964.
Action was brought to determine
.: iioI water rights and to enjoin alleged
*':,I:l overdraftt in order to prevent even-
.1 ti plction of supply and permanent in-
-y lv miineralization and salt water in-
'n The Superior Court, County of
S.\::.lcs, George Francis, J., rendered
'* *.''n t substantially enforcing terms of
jn against all parties, and city and
":n others s appealed. The District
: ,t :\ Appeal. Taylor, J., held that city


should be precluded on equitable grounds
from invoking any benefit from prescrip-
tion statute to establish annual water rights
to 3,170 acre feet, where city sought only
1,846 feet in its answer, and court allocated
1,882 acre feet annually to the city.
Judgment and order denying motions to
vacate affirmed.


I. Waters and Water Courses l107(3), 152(1)
Trial court had authority to limit tak-
ing of ground water from alluvial filled ba-
sin of ground water to protect supply and
prevent eventual depletion of basin.
2. Waters and Water Courses =100
Question of what parties should bear
burden of curtailing overdraft of water
from alluvial filled basin of ground water
in order to protect supply and prevent even-
tual depletion of basin, and in what propor-
tion, depended on legal nature and status
of particular water rights held by each par-
ty.
3. Waters and Water Courses 0I100
An "overlying right" to water in un-
derground basin is owner's right to take
water from ground underneath for use on
his land within basin or watershed, and
right is based on ownership of land and is
appurtenant thereto.
See publication Words and Phrases
for other judicial constructions and
definitions.
4. Waters and Water Courses C=146
Wrongful taking of water from under-
ground basin may ripen into prescriptive
right.










37 CALIFORNIA REPORTER


5. Waters and Water Courses 0=100, 101
Any person having legal right to
ground water may take only such amount as
he reasonably needs for beneficial purposes.
6. Waters and Water Courses <=130, 132
Any water not needed for reasonable
beneficial use of those having prior rights
is excess or surplus water and may rightly
be appropriated on privately owned land
for nonoverlying use, such as devotion to
public use or exportation beyond basin or
watershed.

7. Waters and Water Courses 8=0100
Rights of overlying owners to water
in underground basin are correlative, and
each may use only his reasonable share
when water is insufficient to meet needs of
all.

8. Waters and Water Courses 8=140
As between appropriators of under-
ground water, one first in time is first in
right, and prior appropriator is entitled to
all water he needs up to amount he has
taken in past, before subsequent appropria-
tor may take any.

9. Waters and Water Courses =8146
Prescriptive rights are not acquired by
taking of surplus or excess ground water.

10. Waters and Water Courses &146
Appropriative taking of ground water,
which is not surplus, is wrongful and may
ripen into prescriptive right, where use is
actual, open, and notorious, hostile and ad-
verse to original owner, continuous and un-
interrupted for statutory period of five
years, and under claim of right.

I1. Waters and Water Courses e=146
Appropriative and prescriptive rights
to ground water are subject to loss by ad-
verse user, which commences when over-
draft first occurs.

12. Waters and Water Courses <=146
Computation of prescriptive water
rights in overdrawn basin is quantitative,
and rights of parties are measured by
amounts of respective takings for prescrip-
tive period.


13. Equity =G6
'Party seeking relief in equitable pro-
ceeding must do equity and satisfy all equi-
table claims.

14. Waters and Water Courses 3>152(5)
City should be precluded on equitable
ground from attempting to establish under
prescription statute annual ground water
rights to 3,170 acre feet, where it sought
only 1,846 acre feet in its answer, and court
allocated 1,882 acre feet annually to city.
West's Ann.Civ.Code, 1007.

15. Appeal and Error '839(l)
Test of whether portion of judgment
appealed from is so interwoven with its
other provisions as to preclude independent
examination of part challenged by appel-
lant is whether matters or issues embraced
therein are same as or interdependent on
matters or issues not attacked.

16. Waters and Water Courses (8-152( 1)
Trial court was not required to compute
prescriptive rights of original parties to
ground waters as of date of filing of original
complaint in 1945 and properly used year
1949 when amended complaint was filed,
where complaint was amended in 1949 not
only to bring in additional parties but also
to enlarge scope of proceedings to include
adverse claims of all parties against each
other, thus creating new causes of action,
and amended complaint asked court to de-
termine rights of all parties inter se.
West's Ann.Code Civ.Proc. 389.

17. Parties <=18, 29
Requirement that indispensable parties
be before court is mandatory.

18. Courts <=82
Failure to join indispensable parties
necessary to relief involved constitutes ju-
risdictional defect.

19. Waters and Water Courses
0=107(3), 152( I1)
Trial court properly concluded that
there was no necessity for distinguishing be-
tween overlying users and appropriators of
ground water, where object of judgment







CALIFORNIA WATER SERV. CO. v. EDWARD SIDEBOTHAM & SON, INC.
Cite as 37 Cil.llptr. 1


was to relieve overdraft and prevent salt
water intrusion. West's Ann.Const. art. 14,
3.
20. Appeal and Error C-1078(1)
Matters not argued on appeal were
d(ICmced abandoned as separate grounds on
appeal.
21. Attorney and Client 075(1)
Statute providing that when attorney
dies, or is removed or suspended, or ceases
to act as such, client must be given written
notice by adverse party to appoint another
attorney, or to appear in person applies
only when attorney has died or ceased to
be attorney and not when he ceased to act
for his client in particular case. West's
Ann.Code Civ.Proc. 286.

22. Appeal and Error 0-996
Where all evidence in support of mo-
lions to vacate judgment consisted of writ-
ten declarations, applicable rule on appeal
was that those affidavits favoring conten-
tion of prevailing party establish not only
facts stated therein but also facts which
reasonably might be inferred therefrom.
23. Appeal and Error cz1I011(1)
When there is substantial conflict in
evidence, determination of controverted
facts by trial court will not be disturbed.

24. Appeal and Error <=920(1)
In considering appeal from order grant-
ing motion which is based on affidavits, and
which involves determination of disputed
question of fact, affidavits favoring re-
,pindents are accepted as true.

25. Judgment 0=392
On motion by defendant, whose attor-
in(y died during pendency of action, to va-
c.,lr judgment because other parties failed
to serve written notice on that defendant to
a;.oint new attorney as required by statute,
evi.dnce sustained finding that such de-
i'!ndanit was not taken unawares by death of
.a:,,rncy and was not entitled to notice.
\'V. t's Ann.Code Civ.Proc. 286, 594.
26. Attorney and Client 0=75(1)
lPurpose of statute providing that when
."',lrney dies, or is removed or suspended, or


ceases to act as such, client must be given
written notice by adverse party to appoint
another attorney or to appear in person is
to provide notice to a party who might
otherwise be taken unawares. West's Ann.
Code Civ.Proc. 286.
27. Attorney and Client 0-75(I)
Party may waive right to notice under
statute providing that when attorney dies,
or is removed or suspended, or ceases to act
as such, client must be given written notice
by adverse party to appoint another attor-
ney or to appear in person. West's Ann.
Code Civ.Proc. 286.
28. Appeal and Error 0=989
Function of reviewing court begins and
ends with determination that there is con-
flict of substantial evidence on chief issue.
29. Judgment G-392
On motion of defendant, whose attor-
ney died during pendency of action, to va-
cate judgment because other parties failed
to serve written notice on that defendant
to appoint new attorney as required by stat-
ute, evidence sustained finding that such
defendant waived notice under statute.
West's Ann.Code Civ.Proc. 286, 594.
30. Waters and Water Courses =107(3)
Party alleging existence of ground wa-
ter rights has burden of proof.
31. Trial C-6(I)
Affidavit of service of notice of time
for trial was in itself independent proof of
party's receipt of notice. West's Ann.Code
Civ.Proc. 594.
32. Trial 0=6(I)
Evidence sustained finding that de-
fendant received five days' notice of time
of trial as required by statute so that
court had jurisdiction of defendant. West's
Ann.Code Civ.Proc. 594.

-4-C
Clifton A. Hix and Elizabeth Hix, San
Pedro, for defendant and appellant Edward
Sidebotham & Son, Inc.
A. B. Keel, City Atty., Jennings, Eng-
strand & Hcnrikson, Special Counsel, La
Mesa, for appellant City of Hawthorne.


S~llsll~C -~--.. -l`-~c~









37 CALIFORNIA REPORTER


McCutchen, Black, IHarnagel & Shea, G.
William Shea, Max K. Janmison, Los Angel-
es, for respondent California Water Serv-
ice Co.
Stanley E. Rcmelmeyer, City Atty., Tor-
rance, for respondent City of Torrance.
Musick, Peeler & Garrett, David P.
Evans, Los Angeles, for respondent Palos
Vcrdes Water Co.
Cosgrove, Cramer, Rindge & Barnum,
John N. Cramer, J. D. Barnum, Jr., Los
Angeles, for respondents Carson Estate Co.,
Del Amo Estate Co., Dominguez Estate
Co., Dominguez Water Corp.
Auten F. Bush, City Atty., Redondo
Beach, for respondent City of El Scgundo.
Frank E. Jenney, Los Angeles, for re-
spondent City of Inglewood.
Walter N. Anderson, City Atty., Man-
hattan Beach, for respondent City of Man-
hattan Beach.
Knapp, Gill, Hibbert & Stevens, Joseph
C. Gill, Los Angeles, for respondent County
Sanitation Dist. #2 (of Los Angeles Coun-
ty).
O'Melveny & Myers, Lauren M. Wright,
Los Angeles, for respondents Shell Oil Co.,
Southern Calif. Water Co. and Johns-
Manville Products Corp.
Buford W. Max, Los Angeles, for re-
spondent Texaco, Inc.
William J. DeMartini, Wm. D. Foote,
Los Angeles, for respondent Richfield Oil
Corp.
Burris & Lagerlof, Stanley C. Lagerlof,
Los Angeles, for respondents Stauffer
Chemical Co. and U. S. Steel Corp., Colum-
bia-Geneva Division.
Bewley, Knoop, Lassleben & Whelan,
Martin E. Whelan, Jr., and Edward L.
Miller, Whittier, amici curiae in support of
the contentions of the respondents.

1. The original complaint listed over 500
named defendants, including the two ap-
pellants, and 180 fictitious defendants.
2. In 1956, the functions of this division
were transferred to two newly created


TAYLOR, Justice.
By stipulation, consolidated appeals have
been taken by two of the defendants in this
action: the lirst [No. 21156] by the City of
Hawthorne and Edward Sidebotham & Son,
Inc. (hereafter referred to as Sidebothanm)
from a judgment determining the ground
water rights of the parties; the second [No.
21155] by Sidebotham from an order deny-
ing its motions to vacate the judgment.
In 1945, the plaintiffs, the California Wa-
ter Service and Palos Verdes Water Com-
panies and the City of Torrance, three of
the producers of water from a 101,000 acre
alluvial filled basin of ground water in West
Los Angeles County known as the West
Coast Basin (hereafter referred to as ba-
sin), filed this action against the appellants
and several hundred other defendants I to
determine the ground water rights within
the area and to enioin an alleged annual
overdraft in order to prevent eventual deple-
tion of the supply and permanent injury by
mineralization and salt water intrusion.
Pursuant to section 2001 of the Water Code,
the trial court referred the matter to the
Division of Water Resources of the State
Department of Public Works for a deter-
mination of the facts and the ensuing re-
ports of the division were received into evi-
dence. On the basis of the first of these
reports, the complaint was amended in 1949
to bring in several hundred additional par-
ties and to allege that each of the defendants
made a claim adverse to each of the plain-
tiffs and to all of the other defendants.
Subsequently, after additional reports, the
parties owning more than 80 per cent of
the prescriptive rights in the basin entered
into an agreement and stipulation or judg-
ment allocating the water, restricting total
production, providing for an exchange pool
arrangement, reserving jurisdiction and
continuing supervision through the Depart-
ment of Water Resources as Watermaster.

agencies, the Department of Water Re-
sources and the State Water Rights
Board (Stats. 1st Ex.Sess.1956, ch. 52,
etc.).







CALIFORNIA WATER SERVE. 0. 7 2 WAPD .SIDOTHAM & SON, INC.
f't* is *- <'.R i


Thle appelliants did not sign the 1.a t-'. r
'The matter was originally set for *.; :i
1956 hut then continued to 1961 pen'rI: ; -:
completion of additional reports 1b -.e.
referee. The appellants were duly rija: "o:
of all proceedings but did not appear. 07,
August 22, 1961, the court rendered a : .-
iment substantially enforcing the terry rof
the stipulation against all parties, inm::d-
ing the appellants.
The principal issues presented on t'.is
appeal arc whether the trial court prop,:ry
limited the amount of water that the C:y' of
lHawthorne may take from the basin, and
whether it erred in concluding that Side-
bttham had waived the protection of section
286 of the Code of Civil Procedure. As en-
tirely different contentions are raised by
each of the appellants, we will discuss these
issues separately.

Hawthorne's Appeal
We turn first to the appeal of the City of
llawthorne, hereafter referred to as Hlaw-
thorne. As Hawthorne does not question
the facts as found by the court below nor
the sufficiency of the evidence to support
the judgment, a brief summary of the find-
ings and conclusions will suffice.
The court found the following facts:
As early as 1920. the aferegate extractions
of water of all producers from the basin
exceeded the total annual replenishment.
Since before 1932, there had been no waters
in the basin available for appropriation.
From 1932 to 1949, the average annual
ground water replenishment was 24,400 acre
feet while during the same period, the aver-
age annual extraction was more than 60.600
acre feet.
The annual overdrafts since 1932 result-
ed in a continuing and progressing lovwer.in
of the ground water elevation which per-
nitted salt water infiltration, and if allowed
to, continue unabated would result in a pro-
gressively increasing area of salt water in-
tltration. This would lead to the unreaso::-
able depItion and eventual destruction of
the ground water in the basin as we!t asl
'he elimination of the basin as a conmmnn


source cf -table water supply. These facts
ha.'d i a matter of common knowledge
ar.o g' :?e producers of water in the basin
area is: r-.re than 17 years preceding the
filing of the amended complaint in 1949
[i. e., since 1932].
The court defined the prescriptive rights
owned by the various parties as the highest
continuous annual production of water from
the basin put to beneficial use through rea-
sonable methods of use and diversion for
any period of five successive years before
1949 as to which there had been no cessa-
tion of use during any subsequent period
of five successive years before 1949, and de-
termined the 1949 prescriptive rights of the
parties. By adjusting the 1949 prescriptive
rights to reflect the rights acquired, trans-
ferred, lost or abandoned by certain parties
since 1949, the court arrived at the "adjudi-
cated rights" (or lack thereof) of the par-
ties. Hawthorne had an "adjudicated right"
to 1882 acre feet of water annually, some-
what more than the annual right of 1846
acre feet it had claimed in its answer to the
original complaint. All the water taken
by each of the parties was taken openly,
notoriously and under a claim of right which
was continuously and uninterruptedly ad-
verse to any and all claims of each of the
other parties.
Because the total amount of all the ad-
indicated rights (64.064.09 acre feet) was
greater than the "safe yield" of the basin,
it was necessary to limit the withdrawals
of the parties to the "safe yield." As an
immediate reduction would result in undue
hardship to the parties, the reduction was
to take place over a reasonable period of
time. The court provided for an orderly
and progressive reduction, including a car-
ry-over from one water year to the next
(i. e., from October 1-September 30), the
taking of additional water for emergencies,
and an exchange pool. As the result of the
1955 voluntary interim agreement, the sig-
natories had reduced their taking of water
from 66,500 acre feet per year in 1954-1955
to 62,000 acre feet per year. Accordingly,
the exchange pool provisions of the interim


~xz~-- ~F -- I









37 CALIFORNIA REPORTER


agreement, demonstrating a practical meth-
od of making water available to meet the
requirements of the parties, were to be made
binding on all signatories and all other
parties who indicated a willingness to be
bound thereby.
The court concluded that all parties who
had no rights to extract water were en-
joined and that all of the "adjudicated
rights" were established, were without pri-
ority, and of the same legal effect with ref-
erence to each other. All of the adjudicated
rights were subject to the condition that
the water when used be put to beneficial use
through reasonable methods of use and di-
version and subject to a pro-rata reduction
if required. The court enjoined the parties
from extracting on or after October 1, 1961,
any larger amounts of water than their
adjudicated rights subject to the carry-over
from one water year to the next, emergency
withdrawal and the exchange pool provi-
sions. The court concluded that the taking
of water under the exchange pool provision
would not be "adverse" to the other parties,
that none of the parties should recover his
costs as against another party, appointed the
Watermaster, and reserved jurisdiction to
review its determination of the safe yield.
Hawthorne concedes that the facts are
not in dispute and does not question the re-
tained jurisdiction of the court to meet fu-
ture problems and changing conditions with
expert advice and assistance of the referee
(Wat.Code, 2019; City of Pasadena v.
City of Alhambra, 33 Cal.2d 908, 207 P.2d
17), but -awthorne argues that the folloTw-
ing prejudicial errors require a reversal
of the judgment as to its right to ground
water in the basin: (1) the trial court did
not consider Hawthorne's substantive rights
under section 1007 of the Civil Code; (2)
the trial court erroneously used 1949, the
time of filing of the amended complaint, as
the base year in computing the prescriptive
rights of the parties, instead of 1945, the
time of the filing of the original complaint;
and (3) the judgment failed to distine ,ish
between the nrePcrini;,P A-nd overlying
rights of the parties. Although none of


these matters were raised below and the
record permits inferentces of estoppel and
invited error on the part of IHawthorln, we
will discuss the merits in fairness to all par-
ties and particularly the trial court, which
has labored so long to fully and fairly re-
solve the rights of the parties.

[1-11] There can be no question that the
trial court had authority to limit the taking
of ground water to protect the supply and
prevent the eventual depletio of the hbsin
(City of Pasadena v. City of Alhambra, su-
pra, 33 Cal.2d 924, 207 P.2d 27). The ques-
tion presented is whether the trial court
properly allocated the burden of curtailing
the total production to the safe yield. As
the stipulation of the other parties con-
cerning the reduction in pumping is not
binding on Hawthorne, its rights in relation
to the other producers must be determined
as if there had been no agreement. The
question of who shall bear the burden of
curtailing the overdraft, and in what pro-
portion, depends upon the legal nature and
status of the particular water right held
by each party. The applicable rules were
set forth by our Supreme Court in City of
Pasadena v. City of Alhambra, supra, 33
Cal.2d pages 925, 926, 207 P.2d page 28, as
follows:
Rights in water in an underground basin
are classified as overlying, appropriative and
prescriptive. An overlying right, anal-
ogous to that of the riparian owner in a
surface stream, is the owner's right to take
water from the ground underneath for use
on his land within the basin or watershed;
it is based on the ownership of the land
and is appurtenant thereto. The right f
an appropriator, however, depends upon the
actual taking of water. Where the taking
is wrongful, it may ripen into a prescriptive
right. .Any person having a legal right
to surface or ground water may take only
such amount as he reasonably needs for
beneficial purposes (Katz v. Walkinshaw,
141 Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A.
236; Peabody v. City of Vallejo, 2 Cal.2d
351, 40 P.2d 486; Cal.Const., art. XIV, 3).








CALIFORNIA WATER SERV. CO. v. EDWARD SIDEBOTHAM & SON, INC.
Cite as 37 Cal.Iptr. 1


FPublic interest requires that there be the
greatest number of beneficial users which
thie supply can yield, and water may be
appropriated for beneficial use subject to the
rights of those who have a lawful priority
(Icabody v. City of Vallejo, supra). Any
water not needed for the reasonable benefi-
cial use of those having prior rights is ex-
cess or surplus water and may rightly be
appropriated on privately owned land for
non-overlying use, such as devotion to pub-
f7c use or exportation beyond the basin or
watershed (City of San Bernardino v. City
of Riverside, 186 Cal. 7, 198 P. 784). When
there is a surplus, the holder of prior rights
I:may not enjoin its appropriation (Peabody
v. City of Vallejo, supra). Proper overly-
ingi use, however, is paramount and the
rights of an appropriator, being limited to
the amount of the surplus (City of Lodi v.
East Bay Mun. Utility Dist., 7 Cal.2d 316,
(, P.2d 439) must yield to that of the over-
;i ing owner in the event of a shortage, un-
ive rights through the taking of nonsurplus
waters. As between overlying owners, the
rights, like those of riparians, are correla-
V ;'v each may use only his reasonable
,h .re when water is insufficient to meet the
nctds of all (Katz v. Walkinshaw, supra).
.\A between appropriators, however, the one
;..-t in time is the first in right, and a prior
proprietortor is entitled to all the water he
"r eds, up to the amount he has taken in the
; :t, before a subsequent appropriator may
'.ke any (City of San Bernardino v. City

3. 1T' referee's report indicated that Haw-
thorne was incorporated in 1922 and had
i"'rated a luniciipal water system since
tlint datc. The entire water supply of
!te municipal system was obtained from
tii basin. The first well acquired in
1:i"2 was abandoned in 1925; another
w*il acquired in 3124 was abandoned in
I!.r; of 8 additional wells drilled subse-
,li'ntly. 7 are still in service; another
%'.i! lrill,,d in 1933 was never connected
t' thl municipal water system but mcre-
h' ul,11lihd water for irrigation use until
l'V12 and was abandoned in 1947. A city
*'Lrti ng a municipal water system is
a' ;,'irlpiriator (City of San Bernardino
S('lay of Riverside, supra).


of Riverside, supra, 186 Cal. pp. 26-28, 198.
P. 792).
Prescriptive rights are not acquired by
the taking of surplus or excess water. An
appropriative taking of water which is not
surplus is wrongful and may ripen into
a prescriptive right where the use is actual,
open and notorious, hostile and adverse to
the original owner, continuous and uninter-
rupted for the statutory period of five years,
and under claim of right. Appropriative
and prescriptive rights to ground water are
subject to loss by adverse user. Adverse
user commences when the overdraft first
occurs. Each taking of water in excess of
the safe yield, whether by subsequent ap-
propriators or increased use by prior ap-
propriators, is wrongful because the over-
draft, from its very beginning, operates
progressively to reduce the total available
supply (City of Pasadena v. City of Alham-
bra, supra).
We must look at Hawthorne's contentions
in the light of the above rules. Hawthorne
concedes that it had no overlying rights and
its only rights prior to 1937 were those of
an appropriator.3 The overdraft of the ba-
sin began before 1932 and the dispute here
centers on the proper measurement of Haw-
thorne's prescriptive rights acquired be-
tween 1932 and 1945.
The major contention on appeal is that
the trial court failed to give effect to Haw-
thorne's substantive rights under the 1935
amendment to section 1007 of the Civil
Code.4 Hawthorne concedes that the sec-

4. The section reads as follows: "Occu-
pancy for the period prescribed by the
Code of Civil Procedure as sufficient to
bar any action for the recovery of the
property confers a title thereto, de-
nominated a title by prescription, which
is sufficient against all, but no possession
by any person, firm or corporation no
matter how long continued of any land,
water, water right, easement, or other
property whatsoever dedicated to or
owned by any county, city and county,
city, irrigation district, public or munici-
pal corporation or any department or
agency thereof shall ever ripen into anly
title, interest or right against such
county, city and county, city, public


C- ~--I-- ---.L










8 37 CALIFORN

tion does not apply to its appropriative
rights as these are subject to divestment Iby
the holder of the prior and paramount title
if timely action is commenced (Allen v.
California Water & Tel. Co., 29 Cal.2d 466,
176 P.2d 8) but only to its vested prescrip-
tive rights. It argues that after its pre-
scriptive rights first became vested in 1937
(five years after the commencement of the
overdraft in 1932), no new or increased
use, no matter how long continued, by any
person, firm or corporation could diminish
its right because of the 1935 amendment.5
The effect of this argument is that although
Hawthorne's highest continuous uninter-
rupted extraction for any five year period
up to the filing of the complaint was 1674
acre feet annually, the 1935 amendment
forever froze its 1937 prescriptive right on
a proportionate basis. Hawthorne argues
that if the non-public users who claim pre-
scriptive rights acquired after 1937 are elim-
inated, its share of the total would be in-
creased to 3170 acre feet annually.

[12] We need not discuss this argument
in detail as it is well settled that the compu-
tation of prescriptive water rights in an
overdrawn basin is quantitative (City of
Pasadena v. City of Alhambra, supra).
The rights of the parties are measured by
the amounts of the respective takings for
the prescriptive period. "'The right ac-
quired by prescription is only commensur-
ate to the rights enjoyed during the full
prescriptive period; and the extent of the
enjoyment measures the permanent right.' "

or municipal corporation, irrigation dis-
trict, or any department or agency
thereof or any agency created or au-
thorized by the Constitution or any
law of this State for the administration
of any State school, college or uni-
versity. The exemption of certain
classes of governmental property is in-
tended as a limitation and shall not be
deemed to subject to the operation of
this section any classes of govern-
mental property which would not oth-
erwise be subject thereto." (Emphasis
added.) The first portion was enacted
in 1872; the italicized portion constitutes
the 1935 amendment (Stats.1935, ch. 519,
1, p. 1592.)


IA REPORTER


(E Icin Township Water Dist. v. ITAyward,
218 Cal. 634, 638, 24 l'.2d 492, 494). The
fact that lawthorne used up to 3170 acre
feet in 1954-1')55 does not entitle it to that
amount as of 1949.

1awthorne's "proportionate right" ar-
gument based on the 1935 amendment to
section 1007 of the Civil Code is an ingeni-
ous attempt to revive the theory of allocat-
ing water rights on the basis of priority in
time which the Supreme Court expressly re-
jected in City of Pasadena v. City of Al-
hambra, supra. The court said at pages 932
and 933 of 33 Cal.2d, 207 P.2d at page 32:
" [Such an allocation] would not
only ignor the fundamental principle that
the statute of limitations runs against per-
sons who fail to act when their rights are
invaded, but it would result in an unequal
sharing of the burden of curtailing the
overdraft in that all pumping conducted un-
der authority of certain of the later appro-
priations would be completely eliminated,
whereas no restriction in amount would be
imposed upon pumping based on earlier ap-
propriations. Such a result does not appear
to be justified where all of the parties have
been producing water from the underground
basin for many years, and none of them
have acted to protect the supply or prevent
invasion of their rights until this proceed-
ing was instituted." (Emphasis added.)
It is true that the effect of the 1935
amendment to Civil Code, 1097 was not
argued in City of Pasadena v. City of Al-
hambra, supra. However, we need not re-

5. The amendment changed the law regard-
ing prescription against the property of
municipal corporations. Prior to 1935,
municipal property was exempt from ad-
verse possession only where the public
agency acquired an inalienable interest
(Richards v. County of Colusa, 195 Cal.
Apip.2d 803, 16 Cal.Rptr. 232). Since
the amendment, prescription against mu-
nicipal corporations and other public en-
tities has been barred (Anderson-Cotton-
wood Irr. Dist. v. Zinzer, 51 Cal.App.2d
587, 590. 125 P.2d 82; City of Oakland v.
Burns, 40 Cal.2d 401, 296 P.2d 333).








CALIFORNIA WATER SERV. CO. v. EDWARD SIDEBOTHAM & SON, INC.
Clie aR 37 Cnl.ll,tr. 1


solve the question of an alleged inconsis-
t(iicy between the amended statute and tlhe
hhlling in that case, as we are not here
con fronted with a present disturbance of
Ilawtliornc's 1949 prescriptive rights of
withlirawal from the basin. As in City of
pl.isaolna v. City of Alhambra, supra, all
oi the prescriptive users have continued to
um water since the size of the basin has
:!,i ia water available despite the overdraft.
ihis, the invasion is only a partial one, i. e.,
"a issible interference with respect to ap-
,,!lan.t's rights to continue to pump at some
:iture date. No pumping by any one user
!,, created an overdraft which would op-
S.te to make it impossible for all to con-
;::ue to take at the same rate for some time
:, the future. No reduction has yet been
.,di(red and no reasonable likelihood of such
:a occurrence is shown to be imminent.
1I he creation of the water replenishment dis-
:;ict under section 60000 et seq. of the Wa-
:Cr Code, development of new sources of
a.,tcr, a possible abandonment of prescrip-
:ive rights and other factors, may altogeth-
tr eliminate the threat of future curtail-
.,nat. In the event that a shortage requir-
,.a reduction below its prescriptive rights
,,,uhll take place, Hawthorne may obtain
r.liif under that portion of the judgment
r, -crving jurisdiction to make such modifi-
,.iion as may be necessary. The adjudica-
::,n applies only to existing rights and
t'Lre can be no declaration as to future
..'hts in water to which a party has no pres-
int right (City of Pasadena v. City of Al-
.i:aihra, supra, 33 Cal.2d at 935 and 937,
:'i7 1'.2d at 34).

[13,14] Even assuming arguendo that
Si.imithorne had established a present inva-
:.'a of its rights, the record indicates that
shouldd he precluded on equitable grounds
:;I invoking any benefit from the 1935
."ildmicnt to section 1007 of the Civil
','. A party seeking relief in an equita-
S' l,roceeding must do equity and satisfy all
:.le claims (United States v. Fallbrook
.! c I'tility District, D.C., 193 F.Supp.
': ;,; District Bond Co. v. Pollack, 19
t .':i 3e11, 307, 121 P.2d 7; People ex rel.
31 C.I Rptr.-1V


Mosk v. Barenfeld, 203 Cal.App.2d 166,
177-179, 21 Cal.Rptr. 501). Hawthorne is
attempting to establish annual water rights
to 3170 acre feet which is far in excess of
the extraction of 18-6 acre feet sought in its
answer. The fact is the court allocated
Hawthorne 1882 acre feet annually which is
somewhat in excess of the amount the city
had actually prayed for.
Furthermore, Hawthorne had notice of
all proceedings but chose not to raise its
present arguments in the trial court. It
was well aware of the fact that over a
period of more than 11 years, the other
parties, the referee, the engineers, and the
court spent substantial amounts of time and
funds to gather all of the facts and work
out the claims of the many parties. Con-
ceivably if Hawthorne had presented some
of its contentions below, the referee would
have had to investigate additional facts.
By its answer and inaction, Hawthorne
invited the judgment which it now attacks
(3 Witkin, California Procedure, Appeal,
92, p. 2257, et seq.).
[15] The inequity of Hawthorne's posi-
tion is further demonstrated by its conten-
tion that only its rights need be redeter-
mined. If, in fact, the trial court erred in
its interpretation of Civil Code, 1007, only
the reversal of the entire judgment could
protect the interests of all the parties. The
test of whether a portion of a judgment
appealed from is so interwoven with its
other provisions as to preclude an independ-
ent examination of the part challenged by
the appellant is whether the matters or is-
sues embraced therein are the same as or
interdependent upon the matters or issues
not attacked (American Enterprise, Inc. v.
Van Winkle, 39 Cal.2d 210, 246 P.2d 935).
It is obvious that the rights of the many

non-appealing parties here are so inter-
woven with the whole that Hawthorne's
appeal affects all the other parties (Blache
v. Blache, 37 Cal.2d 531, 233 P.2d 547; Es-
tate of Murphey, 7 Cal.2d 712, 62 P.2d 374).
[16-18] Hawthorne next argues that
the trial court should have computed the
prescriptive rights of the original parties


:










10 37 CALIFORN

as of the date of the filing of the original
complaint in 1945 and that by using the year
1949, when the amended complaint was filed,
it has diminished Hawthorne's propor-
tionate share. It contends that when addi-
tional parties are brought in by an amend-
ment to the complaint, the complaint speaks
as to the original parties only as of the time
of the original filing.6 There is no merit
in this contention as the complaint was
amended not only to bring in additional
parties but also to enlarge the scope of the
proceedings to include the adverse claims of
all the parties against each other, thus
creating new causes of action. The amend-
ed complaint asked the court to determine
the rights of all the parties inter se. The
trial court's order directing the amendment
of the complaint to bring in additional par-
ties and extend the scope of the action was
made pursuant to its authority under section
389 of the Code of Civil Procedure as it
then read.7 Whether all indispensable par-
ties were before the court is determined
by the relief granted (Orange County Wa-
ter District v. City of Riverside, 173 Cal.
App.2d 137, 343 P.2d 450). The require-
ment that indispensable parties be before
the court is mandatory (Hartman Ranch
Co. v. Associated Oil Co., 10 Cal.2d 232,
265, 73 P.2d 1163). A failure to join indis-
pensable parties necessary to the relief in-
volved constitutes a jurisdictional defect
(Sime v. Malouf, 95 Cal.App.2d 82, 116, 212
P.2d 946, 213 P.2d 788). The judgment
finally rendered was an inter se adjudica-
tion of the rights of all the parties among
themselves.
Hawthorne relies on Morrow v. Superior
Court, 9 Cal.App.2d 16, 48 P.2d 188, 50 P.2d
66, cited with approval in Bank of Cali-
fornia, Nat. Ass'n v. Superior Court, 16

.. Hawthorne correctly concedes that since
the new parties were brought in more
than three years after the date of the
original summons (Code Civ.Proc.
581a), the amended complaint could not
relate back to 1945 as to the new parties
(Taliafcrro v. Riddle, 167 Cal.App.2d 567,
334 P.2d 950).


SIA REPORTER


Cal.2d 516, 106 P.2d 879. In the Morrow
case, however, the appellate court concluded
that the trial court had jurisdiction to make
a complete determination of the controversy
in question without the proposed addition
ofythe new defendant. In the instant case,
the new parties were essential and the court
had no jurisdiction to consider the rights
of the additional and original parties inter
se until 1949 when the amended complaint
was filed. At this time, a new cause of ac-
tion arose (United States v. Fallbrook Pub--
lic Utility District, supra, 193 F.Supp. 358),
and the court properly computed the pre-
scriptive rights of the parties on the basis
of their use from 1945 to 1949.

[19] Finally, Hawthorne argues that the
trial court failed to distinguish between the
overlying and prescriptive rights of the
parties. It contends that the judgment er-
roneously treats them all as newly acquired
prescriptive rights without regard to their
origin. Hawthorne has not shown that this
omission, even if erroneous, resulted in a
miscarriage of justice as to its rights (Carr
v. Duncan, 90 Cal.App.2d 282, 202 P.2d
855). We think that the court properly
concluded that there was no necessity for
distinguishing between the overlying users
and appropriators. The object of the judg-
ment was to relieve the overdraft and pre-
vent salt water intrusion. The court fol-
lowed City of Pasadena v. City of Alham-
bra, supra, where it was held that the dis-
tinction was not presently important8 al-
though it might become so in ascertaining
the rights of the parties in the event of pos-
sible future contingencies that may never
occur.
The solution adopted by the trial court in
this case after so many years of diligence
is completely in accord with the rule of rca-

7. i. e., prior to the 1957 amendment.

8. The court said at page 932 of 33 Cal.2d,
207 P.2d at page 32: "We need not de-
termine whether the overlying owners in-
volved here retained simply a part of
their original overlying rights or whether
they obtained new prescriptive rights to
use water."












CALIFORNIA WATER SERV. CO. v. EDWARD SIDEBOTHAM & SON, INC. If
Cite as 37 Cal.Iltpr. 1


,0onible and beneficial use of water cxpress-
l Iby section 3 of article XIV of the state
Constlitltion. This rule dictates that when
tih supply of water is limited, as in the
,,crdrawn basin here in question, the public
interest requires that there be the greatest
i:nlber of beneficial users which the supply
c.n yield (Peabody v. City of Vallejo, su-
pra). It has also been held that under the
institutionall provision, the trial court has
1,,r duty of working out a physical solution
,i possible and if none is suggested by the
.,rties to work out one independently of
,*, parties (Rancho Santa* Margarita v.
Vail, 11 Cal.2d 501, 81 P.2d 533). Here, be-
,.,sc of HIav.thorne's failure to appear, the
I,,aion as to its rights had to be worked
,:t indll)eendently. As in City of Pasadena
v. City of Alhambra, supra, 33 Cal.2d at
,;,. 207 P.2d at 32: "* it seems
;*! ablc that the solution adopted by the
i--.J court will promote the best interests
the public, because a pro tanto reduction
the amount of water devoted to each
*;.:, nt use would normally be less disrup-
*\c than total elimination of some of the


Sidcbotham's Appeal
\\'e turn next to the appeal of Sidebotham
i'.:n the judgment and from the order de-
nig its motions to vacate and set aside
I judgment. On the appeal from the
S. i-ient, the contentions are that after the
h of Sidebotham's attorney, the re-
S:ldnkts failed to serve a written notice
;appoint a new attorney as required by
ction 286 of the Code of Civil Procedure,
.a Sidebotham did not receive notice of
''* trial pursuant to section 594 of the Code
: civil Procedure and that consequently,
'" court had no jurisdiction. On the ap-
-d from the order denying the motions to
i,.' the judgment, the contention is that
S* idence is insufficient to support the
::::; that Sidebotham had waived section
.f tihe Code of Civil Procedure. As the
'* ,ions concerning Code of Civil Proce-
286 are substantially similar and

i order urged all parties to cooperate


based on identical facts in both appeals, we
will discuss them together.
The record reveals that Sidehotham, Inc.
and Edward R. Sidebotham, a stockholder,
were two of the named defendants in the
original complaint. On June 18, 1946, they
filed their verified answer by their attorney,
Alfred L. Black, Jr., generally denying the
allegations of the complaint and setting
forth that Sidleotham's annual use of water
from the basin was approximately 188 acre
feet. Exercising the option granted by the
court to all original defendants, Sidebotham
did not file an answer to the amended com-
plaint. On September 15, 1952, the ref-
eree's report was filed and notice thereof
was served on Sidebotham by mail address-
ed to its attorney, Mr. Black. This report
indicated that Sidebotham, Inc. had a well
in existence but the production was un-
known to the referee because insufficient
data was made available to him.
On several different occasions, a water
resources engineer attempted to obtain in-
formation about Sidebotham's extraction;
and use of water from the basin. Side-
botham consistently took the position that
it was no concern of the referee how much
water it was extracting from the basin.
Subsequently, the supervising hydraulic en-
gineer wrote a letter to Sidebotham with
a copy to Mr. Black advising of the inabil-
ity of the referee to estimate the ground
water production from the well located on
Sidebotham's property and requested the
data needed to confirm Sidebotham's esti-
mate. This letter was not answered.9
Thus, the subsequent reports of the referee
allocated no 1949 prescriptive rights to
Sidebotham.
At the continuance of the trial begun irn
1956, the trial court ordered that appropri-
ate notices be henceforth given to all par-
ties of all proceedings before the court.
Prior to the beginning of the continued
trial on July 21, 1961, the attorney for the
principal respondent filed a notice of fur-
ther trial which had been duly served on
Sidebotham. Sidebotham did not appear.


with the referee and its engineers.


-7W~la~-









37 CALIFORNIA REPORTER


[20] In accordance with the various re-
ports of the referee, the trial court found
that Sidcbotham was not entitled to any
water rights. On October 20, 1961, Side-
botham filed a timely notice of appeal from
the judgment and thereafter on January 30,
1962, filed its first motion to vacate the
judgment, declaring that Sidcbotham's at-
torney of record, Alfred L. Black, Jr., died
on January 30, 1951, and that Sidebotham
had not received any notice of the proceed-
ings in the entire matter since 1951 except
for the 1958 order for the third payment of
the interim expenses of the referee. On
February 5, 1962, Sidebotham filed its sec-
ond motion to vacate the judgment,10 de-
claring that after the death of its attorney
Black, all of the further proceedings in the
case proceeded to judgment contrary to
the mandatory provisions of section 286 of
the Code of Civil Procedure. At the hear-
ing on both motions held on February 14,
1962, Sidebotham introduced the death cer-
tificate showing that Black died on January
30, 1951, as well as declarations of other
stockholders and members of the board of
directors. The respondents filed numerous
declarations indicating that they were not
aware of Black's death until 1962. The trial
court denied both motions on the grounds
that Sidebotham must be considered to have
waived the provisions of section 286 of the
Code of Civil Procedure and that appellant
had five days' notice of the July 21, 1961
trial, pursuant to section 594 of the Code of
Civil Procedure.
[21] Sidebotham's chief contention is
that the evidence is insufficient to support
the finding of waiver by the trial court.
Section 286 of the Code of Civil Proce-
dure provides: ''When an attorney dies, or
is removed or suspended, or ceases to act
as such, a party to an action, for whom he
was acting as attorney, must, before any
further proceedings are had against him,

10. Although both motions relied on Code
of Civii Pro.cedure, 473 and asserted
that the judgment was taken against
Sidelothmni through its mistake, inad-
vertence, surprise and excusable neglect,
these rmatttrs have not been argued on


be required by the adverse party, )b written
fiotice, to appoint another attorney, or to
appear in person." The section applies only
when an attorney has died or ceased to be
an attorney and not when he ceased to act
for his client in a particular case (Gion v.
Stroud, 191 Cal.App.2d 277, 12 Cal.Rptr.
540). The death of Mr. Black on January
30, 1951, was admitted by the respondents
and accepted by the court as a proven fact.
Sidcbotham thus argues that the written
notice requirement of this section is manda-
tory and since admittedly there was no
compliance therewith, the court was de-
prived of jurisdiction in this matter.

[22-24] As all of the evidence in sup-
port of the motions to vacate the judgment
consisted of written declarations, the ap-
plicable rule on appeal is that those affi-
davits favoring the contention of the pie-
vailing party established not only the facts
stated therein but also facts which reason-
ably may be inferred therefrom (Waco-Por-
ter Corp. v. Superior Court, 211 Cal.App.2d
559, 27 Cal.Rptr. 371; Griffith Co. v. San
Diego College for Women, 45 Cal.2d 501,
289 P.2d 476, 47 A.L.R.2d 1349). When
there is a substantial conflict in the evi-
dence, a determination of the controverted
facts by the trial court will not be disturbed.
In considering an appeal from an order
granted on a motion based on affidavits
which involves a determination of a dis-
puted question of fact, the affidavits favor-
ing the respondents are accepted as true
(Bonelli v. Chandler, 165 Cal.App.2d 267,
331 P.2d 705).

[25] The finding of the trial court that
the appellant was not taken unawares by
the death of its attorney is amply supported
by substantial evidence. On June 18, 19-6,
when Alfred Black filed the original answer
for Edward Roy Sidebotham and Sidebo-
tham, Inc., Mrs. Eliza Sidebotham was the

appeal andl are, therefore, deemild !:!ban-
doned as separate grounds on appeal
(Record Machine & Tool Co. v. Pag!e-
man lIolding Corp., 172 Cal.App.2d 164,
169, 342 P.2d 402).










CALIFORNIA WATER SERV. CO. v. EDWARD SIDEBOTHAM & SON, INC. 13
Cite ns 37 Cual.tR r. I


president and general manager of the cor-
poration. She remained in that capacity
until February of 1951. However, during
I9-1 and 1950, Idward Roy Sid ebotham was
actively in charge. lie became president
in 1951 and remained as president until his
own death in March, 1955. Thus, Edward
Roy Sidebotham, who was himself named as
a defendant and appeared with the corpora-
tion in the answer, was president for four
years after the death of Black. It is a
reasonable inference that Edward Roy Side-
hotham knew that his attorney had (lied.
The court's finding that Sidebotham en-
gaged in activities in its own proper person
in this action before and after the death
,f Black is likewise supported by the
declarations. Sidebotham consistently took
the position that its extractions from the
West Coast Basin were no concern of the
referee, and refused to supply the informa-
tion requested to permit the referee to check
its estimates. In 1950, Sidebotham paid
$298.60, its portion of the first interim as-
sessment of the referee's expenses. The
record does not indicate whether this order
for interim payment was served on Mr.
IBlack or Sidebotham. In July of 1958, the
referee noticed a motion ratifying the
order for the second interim payment of his
expenses and for an order requesting a
third interim payment of $207.58 from
Sidebotham, Inc. and Edward Roy Sidebo-
tham. A copy of the notice and attached
order were served by mail on Black who
had then been dead for seven years. The
order assessing its portion of the third in-
terim payment was subsequently mailed to
Sidclotham. Sidebotham's president ad-
mitted receipt of this order about August 28,
1958, and payment thereof sometime before
December, 1958.
In 1961, the referee revised his method
,f calculating charges" and determined
i'.at since Sidebotham had no 1949 pre-
:riptive rights, its total interim payments
'f $506.18 should be refunded. On June

II. Initially. the reh.rges were based (on
the iavrar'i ge aiinnil (extritions shown in
the 1952 report of the referee; in 1961,


16, 1961, a notice of the filing of the
referee's final report and a copy of the
statement and apportionment of the ref-
eree's total expenses were served by certi-
fied mail on Sidebotham. The notice gave
title of the court and cause and the number
of the case. The notice was receipted "E.
J. Sidebotham & Sons, John Beall, (L. B.
M.)." The notice was examined and filed
by John D. Robertson, the manager, and
Mabel Panek, the head bookkeeper of
Chandler's Palos Verdes Sand and Gravel
Company, the then owner of all the stock
of Sidehotham. The court's final order
approving the total expenses of the referee
and authorizing the refund of $506.18 to
Sidebotham, dated July 21, 1961, was served
on Sidebotham August 10, 1961. On Sep-
tember 14, 1961, a copy of the judgment
showing that Sidebotham had no water
rights was served on Sidebotham. On Sep-
tember 27, 1961, a state warrant of $506.18
was issued to Sidebotham and admittedly
endorsed and cashed by Sidebotham's presi-
dent Chandler.

[26, 27] As we recently stated in Gion
v. Stroud, 191 Cal.App.2d 277 at 280, 12
Cal.Rptr. 540 at 542 the obvious purpose of
section 286 is to provide for notice to a
party who might otherwise be taken uv-
awares. Like any other legal right, this
protection may be waived (cf. Barron v
Deleval, 58 Cal. 95 and Wall v. Heald, 95
Cal. 364, 30 P. 551, concerning waiver of
Code of Civil Procedure, 476). The
argument on appeal is that there was no
waiver because Sidebotham's president
signed the 1961 check in complete ignorance
of the entire proceedings. However, the
admitted receipt of the 1958 order for pay-
ment of interim expenses and the prompt
payment thereof indicates Sidebotham's
knowledge of the proceedings in 1958 when
A. C. \uceller was its president and general
manager. Sidebotham has not filed any
declaration of A. C. Mueller denying the
1958 transaction nor any declarations to

the charges were based on the 1919 pre-
scriptive rights.


._.i).i--~










37 CALIFORNIA REPORTER


support its contentions that it was deprived
of notice by the extrinsis fraud of its ad-
versaries.
[28,29] As for Sidebotham's other dec-
larations indicating its ignorance of these
proceedings, if these declarations were un-
contradicted and had been believed by the
trial court, they would have warranted a
setting aside of the judgment and orders.
But these declarations were not uncontra-
dicted and were not believed by the trial
court (Wendell v. Wendell, 111 Cal.App.2d
899, 245 P.2d 342). Our function begins
and ends with a determination that there is
a conflict of substantial evidence on the
chief issue (Florez v. Groom Development
Co., 53 Cal.2d 347, 354, 1 Cal.Rptr. 840, 348
P.2d 200; People v. Newland, 15 Cal.2d 678,
681, 104 P.2d 778). Clearly, Sidebotham
has failed to demonstrate that there is no
substantial evidence to support the chal-
lenged finding (Davis v. Lucas, 180 Cal.
App.2d 407, 409-410, 4 Cal.Rptr. 479). The
court properly concluded that Sidebotham
was not taken unawares and had waived the
notice provisions of section 286 of the Code
of Civil Procedure (Wall v. Heald, supra).
[30] Furthermore, Sidebotham's failure
to cooperate with the referee and supply
the necessary data throughout the entire
proceedings was the basis of the judgment
that it had no water rights in the basin.
The party alleging the existence of water
rights has the burden of proof (52 Cal.Jur.
2d 482). Sidebotham deliberately failed
to meet this burden. Thus, Sidebotham is,
as a matter of law, stopped from request-
ing relief under section 286 of the Code of
Civil Procedure or seeking a reversal of the
judgment so that its rights can be deter-
mined.
[31] As indicated above, on the appeal
from the judgment, Sidebotham also argues
that the court was without jurisdiction to
proceed because it did not receive proper
notice of the trial as required by section 594
of the Code of Civil Procedure. Side-
botham contends that the notice was invalid
because it had been mailed to its Wilming-


ton office that had been closed. This con-
tention is based on the general manager's
affidavits. The record shows that the notice
of further trial set for July 21, 1961, was
served on July 12, 1961, by mail on Side-
botham at 751 East L., Wilmington, Cali-
fornia. At the beginning of the trial, the
notice and affidavit of service were called
to the attention of the court which ordered
them filed. The affidavit of service is itself
independent proof of Sidebotham's receipt
of the notice (Los Angeles v. Young, 118
Cal. 295, 50 P. 534).

[32] Apart from the affidavit, the record
shows that the notice of the filing of the
1961 report of the referee, mailed to Side-
botham at the same address a few weeks
earlier on June 16, 1961, was duly received;
the same is true of the final order approving
the referee's total expenses, served on
August 10, 1961, the copy of the judgment
mailed on September 14, 1961, and the
warrant for $506.18 on September 27, 1961..
It would strain the credulity of any court
to believe that, of all these documents, only
the jurisdictional notice of the time and.
place of trial required by Code of Civit
Procedure, 594 failed to reach Sidebot-
ham. At the most, Sidebotham's denial
raised a conflict which has been resolved
against it by the trier of fact (Idaho Mary-
land Mines Corp v. Industrial Accident
Commission, 174 Cal.App.2d 693, 694-695,.
345 P.2d 109). The reasonable inference is.
that if the Wilmington office was closed
after June 16 and before July 12, the
document, like all of the others, was duly
forwarded (Code Civ.Proc. 1963, subd.
(24); Vaughn v. Jonas, 31 Cal.2d 586, 191
P.2d 432). We conclude that the trial court
properly found that Sidebotham had five
days' notice of time of trial pursuant to.
section 594 and that no question of juris-
diction was presented.
The judgment and the order denying the-
motions to vacate are affirmed.

SHOEMAKER, P. J., and AGEE, J.,
concur.


-1 "







PERRY v. JORDAN
Cite as 207 l'.2d 47


Sutro, San Francisco, as amicus curiae
on behalf of respondents.

BY THE COURT.
The Division of Water Resources of
the Department of Public Works was ap-
pointed as referee in an action to deter-
mine ground water rights, and defendant
California-Michigan Land & Water Com-
pany has appealed from two orders which
fixed and allocated the expenses of the
reference among the parties to the action.
No objection is raised as to the method
or amounts of the allocation, but it is
contended that the reference procedure
was improper and invalid for a number of
reasons. The same contentions were made
in the companion case of City of Pasa-
dena v. City of Alhambra, Cal.Sup., 207
P.2d 17, and were determined adversely
to appellant.
The orders appealed from are affirmed.

Rehearing denied; CARTER and
SCHAUER, JJ., dissenting.








PERRY v. JORDAN.
S. F. 17975.

Supreme Court of California, in Bank.
June 22, 1949.
Rehearing Denied July 21, 1949.
I. Mandamus e5
'A writ of mandamus may be denied if
a similar application between same parties
on same matter is already pending before
another court, but pendency of another ac-
tion is no defense unless it is between same
parties for same cause.

2. Abatement and revival e4
A plea in abatement because of another
action pending is dilatory in nature and
not favored by courts.

3. Courts 1=207(4)
Supreme Court would not refuse to
entertain original petition for mandamus
to compel Secretary of State to take


steps required to prepare for submission to
electorate at next appropriate election, a
measure to repeal constitutional provision
for pensions for needy aged and blind, be-
cause of pendency in Superior Court of
mandamus proceeding presenting same is-
sues. Const. art. 25.

4. Statutes 0-2253/4.4
When scope and meaning of words
or phrases in a statute have been repeated-
ly interpreted by courts, there is some in-
dication that use of them in a subsequent
statute in a similar setting carries with it
a like construction.

5. Constitutional law 09(1)
Constitutional provision requiring
every constitutional amendment or statute
proposed by initiative to relate to but one
subject would be construed as having been
adopted pursuant to purposes underlying
prior constitutional provision requiring
every act to embrace but one subject, which
subject shall be expressed in its title.
Const. art. 4, Ic, 24.

6. Constitutional law =48
Title and summary of chief purposes
and points of proposed repeal measure pre-
pared by Attorney General is presumed
sufficient, and doubts are to be resolved in
favor of its sufficiency. Const. art. 4, 1.

7. Constitutional law 3=9(1)
Title and summary of chief purposes
and points of proposed repeal measure pre-
pared by Attorney General pursuant to con-
stitutional requirement need not contain
a summary or index of provisions of the
measure or auxiliary and subsidiary mat-
ters. Const. art. 4, 1.

8. Constitutional law C=9(I)
Title and summary of proposed meas-
ure to repeal constitutional provision for
pensions for needy, aged and blind as pre-
pared by Attorney General was sufficient
to comply with constitutional requirement,
especially in light of very recent enact-
ment of measure sought to be repealed.
Const. art. 4, 1, Ic; art. 25.

---*--- iff

Original proceeding in mandamus by
Newel Perry against Frank M. Jordan, as


Cal. 47


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