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District Court of Appeal, First District, Division 2, California.



Civ. 12444.

Decided: July 30, 1943

T. B. Scott and Nathan B. McVay, both of Modesto, for appellants. Francis O. Hoover, of Modesto, for respondent.

Defendants appeal from a judgment quieting title in plaintiff to “that certain water distributing system including the pipes, situate in the Modesto High School Tract now in the possession of defendants and formerly connected to wells and pumping plants located upon Lots 7 and 8, in Block ‘D’ and Lots 22 and 23, in Block ‘B’ of the Modesto High School Tract”; directing defendants to reconnect said distributing system to said wells and pumping plants; and decreeing that plaintiff is entitled to an accounting by defendants of all moneys received by them from the operation of said distributing system from November 18, 1940. The notice of appeal further recites that defendants as cross–complainants appeal from the judgment in favor of cross–defendant Ealey.

Plaintiff and respondent Trask has filed no brief on this appeal and this court is therefore entitled to accept as true, in deciding the appeal from the judgment in her favor, the statement of facts set out in appellants' brief. Zeigler v. Bonnell, 52 Cal.App.2d 217, 126 P.2d 118; Ramacciotti v. Galiano, 59 Cal.App.2d 8, 137 P.2d 722. From this source the following facts appear: The Modesto High School Tract is an unincorporated residence district adjacent to the City of Modesto. On and prior to February 21, 1939, cross–defendant Ealey owned the lots mentioned in the judgment. On that date he executed a deed of trust of these lots to secure the payment to respondent Trask of a promissory note. Upon default in the payment of this note the property was sold under the deed of trust, and respondent Trask purchased the property at the trustee's sale. Before this sale, but after execution of the deed of trust, cross–defendant Ealey sold the same lots to appellants Moore and by a separate conveyance transferred to appellants the water distributing system. The portion of the distributing system here involved lies entirely outside the lots covered by the deed of trust, and consists largely of pipes and mains laid in the streets and alleys of the Modesto High School Tract. Before the trial of the action appellants Moore had disconnected the distributing system from the pumps on plaintiff's lots and connected it to a pumping system on other lands owned by themselves. The court found that the distributing system, although lying entirely outside the lots described in the deed of trust, was covered by such deed, apparently on the theory that the distributing system was an appurtenance of such lots. This conclusion is attacked on appeal but we need not decide that question.

The trial court made the following findings with regard to the distributing system:

“II. That at that time there was situated upon said premises two wells and pumping plants. That the said pumping plants were established for the purpose of furnishing water to residents in said Modesto High School Tract, and did furnish to approximately 75 homes water pumped by the said pumping plants from underneath said lots and also other lots not owned by said Ealeys, said distribution being by means of a system of pipes connected to said pumping plants and leading to the various homes so served.

“That on or about 1935 there was one pump on said Lots 22 and 23 in Block B, and that said pump was used to pump water which was distributed through pipes to certain people living in said Modesto High School Tract; that in 1937 a second pump was installed from which water was pumped to people living in said Modesto High School Tract; that said people who used said water paid so much a month to said Ealeys.”

“IV. That at the time said deed of trust was made, executed and delivered by said Ealeys to said plaintiff, Dora B. Trask, and for a long time prior thereto, said pumping plants and pipes leading from said pumping plants were used to deliver water to residences in said Modesto High School Tract.

“That the Railroad Commission of the State of California did not authorize said Ealeys to execute said note and said deed of trust on said property.

“That at the time said note and deed of trust was given by Ealeys to said plaintiff there were about seventy residences in which people lived that were being supplied with water and were making monthly payments to Ealeys for same.”

These findings support appellants' position that the system here in question was a public utility. “A water company is a public utility when it holds itself out, expressly or impliedly, as engaged in the business of supplying water to the public as a class, not necessarily to all of the public, but to any limited portion of it, such portion, for example, as can be served by its system, as contradistinguished from one holding itself out as serving or ready to serve only particular individuals, either as a matter of accommodation or for other reasons peculiar and particular to them.” 26 Cal.Jur. 459; Samuel Edwards Associates v. Railroad Comm., 196 Cal. 62, 70, 235 P. 647; Nail v. Jacks, 201 Cal. 668, 258 P. 593; Babcock v. C. W. Clarke Co., 213 Cal. 389, 2 P.2d 155.

The public utilities act provides in § 52(d), Deering's Gen.Laws 1937, act 6386, p. 3167: “All stock and every stock certificate or other evidence of interest or ownership, and every bond, note or other evidence of indebtedness, of a public utility, issued without an order of the [railroad] commission authorizing the same then in effect shall be void * * *.”

Under the express language of this section the note and deed of trust insofar as they may have attempted to make the property of a public utility security for the debt “without an order of the commission authorizing the same then in effect” were rendered void. For this reason the judgment in favor of plaintiff and respondent Trask must be reversed.

On the attempted appeal from the judgment in favor of cross–defendant Ealey the following appears from the record. A cross–complaint was filed against Ealey and he was brought in as a cross–defendant by order of court. On January 15, 1942, the trial court made an order striking the cross–complaint from the files. The judgment was rendered on May 11, 1942, and contains by way of recital only the statement “the cross–complaint having been stricken from the files upon motion of the cross–defendant.” Notice of appeal was filed July 17, 1942, and purports to appeal only from the judgment entered on May 11, 1942.

The order of January 15, 1942, striking the cross–complaint from the files was as to Ealey the cross–defendant, not otherwise a party to the action, a final and appealable judgment. Howe v. Key System Transit Co., 198 Cal. 525, 246 P. 39; Young v. Superior Court, 16 Cal.2d 211, 105 P.2d 363; Halterman v. Pacific Gas & Elec. Co., 22 Cal.App.2d 592, 71 P.2d 855. The notice of appeal, even if liberally construed as an attempt to appeal from this order of January 15, 1942, was filed too late.

The attempted appeal as to cross–defendant Ealey is dismissed. The judgment in favor of plaintiff is reversed.

DOOLING, Justice pro tem.

NOURSE, P. J., and SPENCE, J., concur.