Webber

Appeal from the judgment under a plea in abatement.

Plaintiff averred its incorporation under the laws of the state for the purposes of building, owning, holding, obtaining, and selling ditches, canals, flumes, rights of way, water and water rights, reservoirs, headgates, etc., and to operate the same. It then averred its acquirement of certain valuable water rights in Tulare county, its construction and ownership of canals, ditches, etc., by which it conveyed water from Cole slough, in Tulare county, through that county and into Fresno county. It alleged that the purposes of diversion are for the dis *90 tribution and selling and renting of the water to the inhabitants of the two counties, and for supplying farming neighborhoods therein with the water for farming, irrigation, domestic, and other useful purposes; and it further averred that the water is used for these purposes.

Being unable to acquire by purchase the necessary rights for extending its ditches, etc., over the land of defendant, plaintiff begins these proceedings to condemn the same. (Const., art. XIV, sec. 1; Code Civ. Proc., sec. 1238.)

Defendant traversed all the material allegations of the complaint, and…