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District Court of Appeal, Fourth District, California.

ATCHISON, TOPEKA AND SANTA FERAILWAY COMPANY, a corporation, Respondent, v. KINGS COUNTY WATER DISTRICT and Elbert Montgomery, Louis Giacomazzi, Louis E. Hansen, Frank J. Martin, and Earle A. Howe, as the Board of Directors of Kings County Water District, and Ralph S. Morgan, Secretary of Kings County Water District, Appellants.*

Civ. 4992.

Decided: March 26, 1956

Walch & Griswold, Hanford, for appellants. Robert W. Walker, John J. Balluff, Los Angeles, Sidney J. W. Sharp, Herbert M. Braden, and Lawrence W. Clawson, Hanford, for respondent.

This is an appeal from a judgment in mandate requiring the board of directors of the Kings County Water District to exclude the right of way owned by the respondent railroad company, approximately 16 1/2 miles long and 100 feet in width, consisting upon analysis of a 30-foot center strip upon which the ties, rails and roadbed of the main line of the railroad lie, and a contiguous strip on each side thereof 35 feet in width. The station areas along the railroad are not included in the petition nor is the company property in the city of Hanford which is outside of the water district boundaries.

The appellant county water district was organized February 24, 1954, under the County Water District Law. Water Code sec. 30000 et seq. It comprises approximately 150,000 acres. It was organized and formed to protect the underground water supplies of the area from excessive pumping and to ward against the transportation of underground water by others to areas outside the district. Its purposes and functioning generally have been in accordance with the aims and methods approved by law for such an organization. Coachella Valley County Water Dist. v. Stevens, 206 Cal. 400, 274 P. 538; Water Code secs. 31020 to 31033.

Prior to the institution of the mandate suit, the respondent railroad petitioned the board of directors of the district for the exclusion of the land pursuant to section 32200 of the Water Code. The board held an extended hearing, and thereafter denied the petition. A complete record of the testimony and proceedings at that hearing was received in evidence by the trial court and formed the evidentiary basis for its judgment.

Section 1094.5 of the Code of Civil Procedure prescribes the method and scope of the review which the trial court may make in a mandate action of this character. Discretion as to the determination of facts is vested by law in the board of directors of the water district and the limits of the court's inquiry at the trial must be whether there was any prejudicial abuse of discretion by the board in that its findings, if any, and its order are not supported by substantial evidence.

In passing it should be noted that there were no formal or explicit findings of fact by the board in connection with the order denying exclusion of appellants' land. The applicable code sections, Water Code sections 32220–32227, do not specifically require findings of fact when exclusion is demed. Compare the requirement for findings in proceedings for the inclusion of land in a county water district. Sec. 32447, Water Code. The preparation of findings by the board would, however, be helpful and such a record of the specific determination of facts is advisable as a matter of administration even though not mandatory under the statute. However, the board's decision denying the petition to exclude the respondent's land carries with it the implied findings that the board did not believe that the prerequisites to exclusion had been proved.

In Lindell Co. v. Board of Permit Appeals, 23 Cal.2d 303, 315, 144 P.2d 4, 11, the relative powers and duties of the court trying a mandamus case and of the board of directors against whom the action is brought are stated as follows:

‘It is the general rule that the writ of mandamus may not be employed to compel a public administrative agency possessing discretionary power to act in a particular manner. The court in response to appropriate application may compel such agency to act, but it may not substitute its discretion for the discretion properly vested in the administrative agency. 16 Cal.Jur. 809, § 28, and cases there cited; 34 Am.Jur. 856, § 68, with supporting authority. In a proceeding of this character, challenging the propriety of decision of an administrative board, the attitude of the courts is well stated in the following language found in the case of Maxwell v. Civil Service Commission, 169 Cal. 336, 339, 146 P. 869, 871: ‘Courts should let administrative boards and officers work out their problems with as little judicial interference as possible. * * * Such boards are vested with a high discretion, and its abuse must appear very clearly before the courts will interfere.’'

In Odden v. County Foresters, etc., Retirement Board, 108 Cal.App.2d 48, 49, 238 P.2d 23, 24, it is said:

‘On an application for a writ of mandate to review an order of a local quasi judicial body such as the board in the present case the trial court does not have a right to judge of the intrisic value of evidence nor to weigh it. The power of the court is confined to determining whether there was substantial evidence before the board to support its findings.’ See, also, Conroy v. Civil Service Commission, 75 Cal.App.2d 450, 457, 171 P.2d 500.

In exclusion proceedings before irrigation district boards it has been repeatedly held that the findings of the board that the lands of petitioners for exclusion would be benefited by their retention within the district boundaries is binding upon the reviewing court when the testimony on the question is conflicting and the evidence supporting retention is substantial. J. & W. C. Shull, Inc., v. Merced Irr. Dist., 90 Cal.App. 270, 265 P. 965; San Joaquin Agricultural Corp. v. Board of Supervisors, 121 Cal.App. 468, 8 P.2d 1051.

The section of the Water Code which defines the duties of the board of directors when passing upon an exclusion petition is section 32222, which reads as follows:

‘The board after the hearing of any exclusion petition shall order the exclusion of all or any part of the land described in it when as to the land to be excluded either:

‘(a) The board determines that the land will not be substantially and directly benefited by its continued inclusion in the district.

‘(b) The board determines the exclusion to be for the best interests of the district.’

‘Substantially’ means in a substantial manner, really, solidly, completely. 40 Words & Phrases, p. 504. Webster's International Dictionary defines the word substantial, in part, as follows: ‘* * * material; * * * not seeming or imaginary; * * * real; true; * * * important; essential; material; having good substance; strong; stout; solid; firm.’

‘Directly’ means in a direct way, without anything intervening, not by secondary, but by direct, means. 12A Words & Phrases, p. 140.

The substantial and direct benefit which must be present to justify retention of land in a county water district means direct and substantial benefit to the land in question. Benefits that might accrue to a railroad through increased traffic due to prosperity in a farming community occasioned by the conservation of water would be indirect benefits and therefore immaterial within the meaning of the legislative enactment.

Considering separately the 30-foot center strip of land upon which the roadbed of the company's main line is located it seems clear that the operations of the water district are not, and could not be, of substantial and direct benefit to it. Reasonable men could scarcely differ from the conclusion that steel rails, ties and rock ballast carefully combined and maintained along a way permanently dedicated to the duties of a common carrier could not possibly be benefited directly and substantially by underground waters. The issuance of the writ of mandate with respect to that portion of the land was therefore proper for the reason that the board of directors had no evidence before it from which it could conclude that that strip of land would be substantially or directly benefited by its comtinued inclusion in the district.

Turning, however, to a consideration of the two adjoining 35-foot strips of land, we find that the situation is different and there is evidence in the record from which the board of directors could legitimately determine that such land will be substantially and directly benefited by its continued inclusion in the district. In this respect the record shows that the Santa Fe Railroad has in fact leased a number of parcels of this land to farmers for the purpose of raising crops on it. And testimony on behalf of the district at the hearing before the board showed that various crops, including alfalfa, cotton, permanent pasture and grapes were then actually growing on portions of these two 35-foot strips. An engineer for the railroad company admitted that all of this land was on the market for leasing for such purposes, but stated that the motive of the railroad company in encouraging and soliciting such leases was to avoid the otherwise costly process of destroying weeds which grow annually on the two 35-foot strips in the absence of cultivation and care by tenants. He further testified that the amounts received by the railroad from the leases were nominal, and that all of the land is not readily adaptable to the growing of crops due to differences in elevation caused by the construction of the roadbed. However, these last mentioned factors are not controlling. A farmer could not lay the foundation for the exclusion of his land by letting it lie fallow or by refusing to cultivate it or otherwise prepare it for agricultural uses. The railroad has land which is adaptable to and at least in part actually used for agricultural purposes, and the board had substantial evidence before it from which it legitimately determined that this land as such will be directly and substantially benefited by its continued inclusion within the boundaries of the county water district. The trial court therefore was not justified in holding that the discretion of the board of directors could not be exercised in favor of the inclusion of the land in the district.

The appellant contends that findings of fact and conclusions of law were not signed and filed as required by law. Findings of fact and conclusions of law are necessary in a mandate action, unless waived. Beloin v. Blankenhorn, 97 Cal.App.2d 662, 664, 218 P.2d 552; Davis v. State Board of Optometry, 35 Cal.App.2d 428, 433, 95 P.2d 959. Here, the findings were not prepared, signed or filed until after judgment, being then filed nunc pro tunc as of the date upon which the decree was entered. The inherent power of a trial court to make findings nunc pro tunc is established in this state. Norton v. City of Pomona, 5 Cal.2d 54 [2], 53 P.2d 952. And in Nielsen v. Witter, 111 Cal.App. 742, 744, 296 P. 121, it was held that prior to appeal findings may be filed nunc pro tunc to support a judgment already entered. We consequently feel constrained to hold that no reversible error was committed through this failure to observe the normal sequence prescribed by the Code of Civl Procedure for the proposal, consideration and adoption of findings of fact and conclusions of law. Code, Civ.Proc. sections 1109 and 634.

The judgment is affirmed as to the 30-foot center strip of the respondent railroad company's land containing its roadbed, ties, and rails, and is reversed with respect to the two contiguous 35-foot strips, with directions to the trial court to modify its findings, judgment and writ of mandate in conformity herewith. Each party shall pay its own costs on appeal.

CONLEY, Justice pro tem.

BARNARD, P. J., and GRIFFIN, J., concur.

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