Sierra Land & Water Co. v. Cain Irrigation Co.

Plaintiff, a public utility corporation, by an original, an amended and an amendment to the amended complaint, essays to put in issue as against the claims of defendants its priority to an appropriative right in 75,000 miner’s inches of the waters of Rush Creek in Mono County. The complaint is in two counts. The first is an attempt to show a compliance with section 1410 et seq. of the Civil Code, by setting forth in detail the facts upon which it relies; the second is an attempt to plead the ultimate fact of ownership of such prior right.

The court below, having sustained demurrers to said complaint as amended, without leave to amend, gave ¡judgment for defendants. Plaintiff has appealed, supporting its appeal by the judgment-roll and a bill of exceptions. The effort of plaintiff in its first count is to come within the rule announced in the cases of Inyo Cons. Water Co. v. Jess, 161 Cal. 516 [ 119 Pac. 934 ]; Merritt v. City of Los Angeles, 162 Cal. 47 [ 120 Pac. 1064 ],

We have carefully considered the record and the voluminous briefs on file. We agree with the court below that plaintiff has not stated a cause of action and that insurmountable difficulties bar the right of…