LINDSAY-STRATHMORE IRRIGATION DISTRICT (A Corporation), Petitioner, v. SUPERIOR COURT OF TULARE COUNTY Et Al., Respondents

California Supreme Court

Sac. No. 2983.

February 20, 1920

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Olney

Olney, Shaw

APPLICATION for Writ of Prohibition directed against the Superior Court of Tulare County and the judge thereof to prevent further proceedings in a pending action. Writ granted. The facts are stated in the opinion of the court.

Opinion 2 (Olney)

[1] Disqualification of Judge — Action to Enjoin Pumping from Underground Flow of.River—Ownership of City Lot Within Delta—Consideration of Complaint.—In determining whether a judge of the superior court is disqualified from sitting or acting in an ■ action to restrain an irrigation district from pumping water from t'he underground flow of a river by reason of his ownership of a city lot within the delta of the river, allegations of the complaint to the effect that the waters penetrate the soil of the entire delta, including lands not belonging to any of the plaintiffs, that the water moistens and makes productive the soil of such lands of other parties, and that all of such lands require the continuance of the underflow, cannot be regarded as surplus-age, where by other allegations the action is shown t'o have been brought for the benefit of all persons within the delta who have a like interest with the plaintiffs.

[2] Id.—Prohibition — Pleading — Allegation of Facts Outside of Complaint.—In a proceeding in prohibition to prevent further proceedings in an action on the ground that the judge was disqualified the petitioner has the right to show the disqualification by proper allegations and proof of facts not shown upon the face of the complaint.

[3] Id.—Absence of Use of Underground Flow Immaterial.—The disqualification of a judge to sit or act in an action to enjoin an irrigation district from pumping water from the underground flow of a river by reason of his ownership of a city lot within the river delta is not removed because he had not hitherto used the underground flow available in his lot and no showing was made that he had any intention of so doing, where the theory of the complaint was that all owners of lands within the delta had the right to use the flow beneath their respective lands at any time, even if it be admitted that the theory be erroneous.

[4] Id.—Extent of Disqualification—Question of Law as Well as Fact.—The disqualification of a judge t'o sit or act in an action in which he is interested extends to an interest in a question of law as well as to an interest in a question of fact if it affects or determines the interest of the judge in the subject matter involved.

1. Disqualification of judge by interest in legal question involved in litigation, note, Ann. Cas. 1917A, 1068.

[5] Pleading — Parties — Action Brought on Behalf of Others— Bight of Intervention.—Where an action is brought not alone /or the plaintiffs but for all other persons who have a like interest with the plaintiffs, the persons thus represented are regarded-as quasi parties, and may intervene and make themselves actual parties when necessary for the protection of their interests, and they are bound by the decree.

[6] Disqualification of Judge—Action to Bestrain Pumping Operations—Slight Injury to Property of Judge—Disqualification not Bemoved.—The disqualification of a judge to sit or act in an action to enjoin an irrigation district from pumping water from the underground flow of a river by reason of his ownership of a city lot within the river delta is not affected by the fact that the injury to his lot from the pumping operations is so slight that he could not obtain an injunction to restrain such diversion.

[7] Injunction — Continuance of Acts — Inappreciable Immediate Damage.—An injunction will lie to prevent a wrongful act if the continuance of such act's will, in time, ripen into an easement in favor of the defendant which will operate to deprive the plaintiff of the use of his property, or some part thereof, or where it takes from him the substance of his estate, although the immediate damage inflicted by the act is inappreciable.

[8] Disqualification'of Judge—Extent of Interest in Subject Matter of Action.—If a judge has an interest in the subject matter of the action, or has property which may be directly affected by the result of the judgment that may be rendered therein, the court will not consider the extent of the interest nor inquire into the effect it would have on his rulings, since it is sufficient to disqualify him if it is a certain, definable, pecuniary, or proprietary interest or relation which will be directly affected by the judgment that may be rendered.

[9] Id.—Disqualification of Judge—Bight to Baise Question— Lack of Estoppel.-—The provisions of section 170 of the Code of Civil Procedure clearly imply that there can be no estoppel t'o raise the question of the disqualification of a judge to sit or act in an action in which he has an interest in - the subject matter, by the acts or conduct of a party, at least prior to final judgment.

[10] Id.—-Construction of Section 170, Code of Civil Procedure —Be-enactments Without Amendment — Presumption as to Legislative Intent.—In view of the fact that section 170 of the Code of Civil Procedure has been several times re-enacted without change, it must be presumed that the legislature intended it to have the meaning and effect that had been given to it by previous decisions of the supreme court.

[11] Id.—Disqualification of Judge—Consent of P'arties.—Where a judge is disqualified by reason of interest in the subject matter of the action, consent of parties cannot impart validity to the proceedings, and a party to the action who desires to attack them is not estopped from doing so by the fact that he attended during the trial without raising the objection.

[12] Id.—Action Against Irrigation District—Disqualification of Judge Under Subdivision 5, Section 170, Code of Civil Procedure.—A judge is disqualified to sit or act in an action to enjoin an irrigation district from pumping water from the underground flow of a river by reason of his ownership of a city lot within the river delta under subdivision 5 of section 170 of the Code of Civil Procedure, which declares that in an action or proceeding by or against the reclamation board of the state, or any reclamation, levee, swamp-land, or drainage district, or any public agency, or trustee, officer, or employee thereof, affecting or relating to any real property, the judge of the superior court of the county in which the property is situated shall be disqualified to sit or act, since the phrase “public agency” includes irrigation districts.

Sloss, Ackerman & Bradley, Power & McFadzean, W. G. Irving and L. L. Dennett for Petitioner., Larkins & Bailey, Farnsworth & McClure and Wheaton A. Gray for Respondents.