Nickalls

Plaintiff brought this action for an adjudication of its rights and duties under its contract with defendant to furnish him water for the irrigation of his land, consisting of twenty acres. The contract, executed September 29, 1908, is attached to the complaint and made a part thereof. It has been held that the plaintiff is not a public utility and is not subject to the rate-fixing jurisdiction of the Railroad Commission. (McCullagh v. Railroad Commission, 190 Cal. 13 [ 210 Pac. 264 ].) The parts of the contract material to the questions arising on this appeal are as follows:

The complaint contains the usual averments in actions for declaratory relief. It is alleged therein that the defendant claims to be entitled to the use of a greater quantity of water than that specified in the contract and that such claim is without right. The defendant filed an answer and a cross-complaint, the plaintiff’s demurrers to which were sustained by the court. The defendant thereafter filed an amended answer and cross-complaint, to which the plaintiff demurred, and the court sustained the demurrers without leave to amend. A trial was thereafter had, the defendant not appearing, and judgment was…