Citations
- 99 Cal. App. 337
Full opinion text
THOMPSON (R. L.), J.
This is an appeal from an order denying defendant’s motion for a change of place of trial.
The complaint alleges that the plaintiff purchased from the defendant corporation a small tract of land in Butte County, together with the water rights appurtenant thereto, consisting of a quantity of water conveyed upon the land of plaintiff from Butte Creek by means of ditches; that the plaintiff relied upon this water supply to irrigate the nursery stock and crops which he produced on the premises; that subsequently the defendant changed the location of the main ditch adjacent to plaintiff’s northerly property line, and closed the outlets therefrom with a single exception, with the result that the plaintiff was thereafter unable to secure an adequate supply of water. The complaint then prayed for damages and the issuance of a mandatory injunction requiring the defendant to restore the former system of ditches and outlets. The defendant is a body corporate which was created by an act of the legislature “to provide employment and rural homes for soldiers, sailors and marines . . . who have served with the armed forces of the United States in . . . wars; . . . and to demonstrate the value of adequate capital and organized direction in subdividing and preparing agricultural land for settlement.” A board of managers was created, and large appropriations of money were made from time to time to carry out the purposes of the act. (Stats. 1917, p. 1566, 2 Deering’s Gen. Laws 1923, Act 8008.) Subsequently the department of agriculture of the state of California was given the management of the affairs of the State Land Settlement Board, with certain limited reservations. (Stats. 1927, p. 942.)
A demurrer and motion for change of place of trial to Sacramento County were filed by the defendant. The motion was denied, and the defendant appealed.
The attorney-general maintains that the State Land Settlement Board, a corporation, is virtually a department of the state government, and that it has a right to a transfer of the place of trial to the county of Sacramento, under the provisions of an act “to authorize suits against the state, and regulating the procedure therein.” (Stats. 1893, p. 57, 2 Deering’s Gen. Laws 1923, Act 7928.) This act provides in part: “All persons who have, or shall hereafter have^. claims on contract or for negligence against the state, not allowed by the state board of examiners, are hereby authorized ... to bring suit thereon against the state in any of the courts of this state . . . Sec. 4: ... It shall be the duty of the attorney-general to defend all such suits; and upon his written demand, made at or before the time of answering, the place of trial of any such suit must be changed to the county of Sacramento.”
Unless this statute authorizes a transfer to Sacramento County of any case based upon contract or negligence against any auxiliary department of the state government, whether such department exercises necessary governmental functions, or not, then section 392 of the Code of Civil Procedure will govern in determining the county in which the present ease is entitled to be tried. This section provides in part: “Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this code: 1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form, of such right or interest, and for injuries to real property.”
It must be conceded that the diverting of water necessary for irrigation purposes, which is appurtenant to real property, is an injury thereto.
It seems quite evident that the purposes for which the legislature enacted the State Land Settlement Board, laudable as they may have been, w