Lindsay-Strathmore Irrigation Dist. v. Superior Court of Tulare Cty.

—This is a proceeding in prohibition begun in this court to prevent further proceedings in an action pending before Judge Wallace in the superior court of Tulare County wherein Tulare Irrigation District and many others, corporations and individuals, are plaintiffs and LindsayStrathmore Irrigation District is defendant.

The ground of this proceeding, stated generally, is that by reason of the ownership by Judge Wallace of a certain lot of land 85 feet by 123 feet in size situated in the city of Visalia, the action is one “in which he is interested” and consequently one in which, under the provisions of section 170 of the Code of Civil Procedure, he is forbidden to sit or act as judge.

Said action was begun in said superior court on July 16, 1916, and it has proceeded to trial before Judge Wallace, who has signed and filed his decision in writing, stating his findings of fact and conclusions of law upon the issues in the case. It is alleged that he has been the owner of said lot for more than thirty years last past and still remains such owner; that it is situated over subterranean waters which add substantial value to the said lot, and that the judgment sought by the plaintiffs…

—I concur, but only on the ground that Judge Wallace is disqualified by subdivision 5, section 170, of the Code of Civil Procedure. That he had or has a disqualifying personal interest is not in my judgment the fact. It is not necessary, however, to discuss the point. Suffice it to say that I think it affirmatively appears that whatever right Judge Wallace, as the owner of the lot upon which he resides, may have to the continued maintenance of the water level of the subterranean waters beneath its surface is not merely of only slight value to him, but is of no value or concern to him at all. In other words, his right, if he has any, is purely theoretical and his so-called interest ds not a thing of reality. (Oakland v. Oakland Water Front Co., 118 Cal. 249, 252 , [ 50 Pac. 268 ].) I can understand perfectly how it never occurred to Judge Wallace or to the litigants or counsel until a very recent date that his ownership of the lot gave him any personal interest in the litigation, though his ownership was well known, and the fact that it did not occur either to him or to them seems to me strong corroboration of the view that he has no interest in any real sense of the word.

The…