THE LOWER KINGS RIVER WATER DITCH CO. v. THE KINGS RIVER AND FRESNO CANAL CO

[No. 7,514. In Bank.] April 13, 1882. THE LOWER KINGS RIVER WATER DITCH CO. v. THE KINGS RIVER AND FRESNO CANAL CO. Place of Trial—Action for Diversion of Water—Appeal from Order Refusing to Change the Place of Trial.—Appeal from order denying defendant’s motion for change of place of trial. The action was for the diversion of water from the plaintiff’s ditch, and was commenced in Tulare County. The defendant's principal and only place of business was in Fresno County. The plaintiff’s ditch is situated partly in Fresno and partly in Tulare County—the head of the ditch and the point of diversion of the water by the defendant being in the former county. Held: The order denying the motion was correct. The right of the plaintiff, as stated in the complaint, to have the water flow in the river to the head of its ditch is an incorporeal hereditament appurtenant to the ditch, and is co-extensive with plaintiff’s right to the ditch itself. The subject of the action is, therefore, situated in both counties and the action might have been brought in either. The injury is not confined to that part of the ditch in Fresno County. Appeal from an order denying defendants’ motion to change place of trial in the Superior Court of Tulare County. Ceoss, J. H. S. Dixon, for Appellant. The action was not “properly brought in Tulare County,” and is not “to recover damages foran injury to ditch property and the water-right belonging thereto,” and for an injunction. I venture to assert that no Court has ever heard of “ ditch property.” Counsel coin this definition. Unless it is meaningless it is absurd. An unlettered man might loosely refer to his “ditch property,” but lawyers must know that all property is classified and must be either real or not real. This, counsel claims, is complaint for “injury to real property,”—or as they term it, “ditch property.” I confidently submit that such is not the case, and that the action is purely one in personam for damages for trespass upon an incorporeal hereditament, to wit: the right to divert the water of the stream in question, and, as an incidental thereto, for an injunction, and hence is a transitory action. Brown & Daggett and J. Jacob, Jr., for Respondent. We contend that the action was properly brought in Tulare County, and should be tried therein, notwithstanding defendant is a resident of Fresno County. The action is brought to recover damages for an injury to the ditch property and water right belonging thereto, which said ditch, property, and water right belong to this plaintiff. A water ditch' and the water right appurtenant thereto are real property. (C. C. §§ 658,659, 662; Farmer v. Ukiah Water Co., 56 Cal. 13; Reed v. Spicer, 27 Id. 58; C. C. § 1104; 3 Washburn, Real Prop., 4th Ed., marginal page 627; Hill v. Newman, 5 Cal. 445; C. C. P. § 392.) [MAJORITY — Myrick, J.:] Myrick, J.: This is an appeal from an order denying defendant’s motion for change of venue. The motion was based on the ground that the action was not brought in the proper county, and was resisted on the ground that the action was brought in the proper county, and that it should be retained for the convenience of witnesses. The action was commenced in Tulare County, and the defendant, a corporation, has its principal and only place of business in Fresno County. The plaintiff in its complaint alleges that it is and has been ever since October, 1873, the owner of a certain ditch used in conveying water from King’s River and selling the same for agricultural purposes, and of the right to divert and carry water through the same; and that in 1875 defendant constructed a ditch above the mouth of plaintiff’s ditch and diverted from said river nearly all the water flowing therein, to the damage of plaintiff and of its water right. It appears from the affidavits in the case that the points of diversion of the water from the river by both plaintiff and defendant are in Fresno County, and that plaintiff’s ditch is about twenty miles in length, about eighteen miles thereof being in Tulare County, the remainder in Fresno County, and that the damage sustained by plaintiff by reason of the acts of defendant has been sustained by plaintiff and committed by defendant upon property wholly within Tulare County. The Court below denied the motion; but upon what ground the denial was based, does not appear. We think the order denying the motion was correct, upon the ground that the action was properly brought in Tulare County. (C. C. P., 392.) Watercourses are either natural or artificial. Plaintiff’s ditch was an artificial watercourse. “A watercourse consists of bed, banks and water.” (Angell on Watercourses, Sec. 4.) The right of plaintiff, as stated in its complaint, to have the water flow in the river to the head of its ditch, is an incorporeal hereditament, appertaining to its watercourse. Granting that plaintiff does not own the corpus of the water until it shall enter its ditch, yet the right to have it flow into the ditch appertains to the ditch. Real property consists of land, that which is affixed to land, and that which is incidental or appurtenant to land. (Civil Code, 658.) If the watercourse, consisting of the bed and banks of the trench, and of the water therein, be real property, the right' to have water flow to it is incidental and appurtenant thereto. The acts complained of are preventing water from flowing in plaintiff’s ditch; the ditch is located in both counties; therefore the subject of the action is in both counties, and the action might have been brought in either. It is true that the specific act complained of, viz: the diverting of the water, occurred in Fresno county, at the head of defendant’s ditch, and not at all upon plaintiff’s ditch; but the consequences of that act operated upon the whole of plaintiffs ditch, and was injurious as well to that part of it in Tulare County as to that in Fresno County. In no sense can the injury be said to be confined to that part of the ditch in Fresno County. The ditch is an entirety, and the right to have water flow in it is co-extensive with plaintiff’s right to the ditch itself. Such is the case as now presented to us. Upon the other point, viz: retaining the case for convenience of witnesses, we express no opinion. Order affirmed. Morrison, C. J., and Thornton, Sharpstein, McKee, and McKinstry, JJ., concurred.