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District Court of Appeal, Third District, California.

COUNTY OF ALPINE, Plaintiff and Appellant, v. COUNTY OF TUOLUMNE, County of Calaveras and County of Amador, Defendants and Respondents.*

Civ. 8933.

Decided: March 29, 1957

Jeremy C. Cook, Turlock, and Wade H. Coffill, Oakdale, for appellant. Hardin & Gorgas, Sonora, for respondent Tuolumne County. Joseph S. Huberty, San Andreas, for respondent Calaveras County. Anthony Caminetti, Jr., Jackson, for respondent Amador County.

Plaintiff Alpine County appeals from a judgment of dismissal entered pursuant to an order of the court sustaining defendant counties' demurrers without leave to amend.

By its complaint Alpine County sought a judicial determination of the boundary between it and the defendant counties and to restrain said counties from exercising jurisdiction over the territory alleged to be situated within the boundaries and to belong to it. Each of the defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action; that the court had no jurisdiction of the persons of the defendants or of the subject matter of the action; and that there was another action pending between the parties for the same causes alleged in said complaint.

In view of the fundamental issue as to the exhaustion of administrative remedies as disclosed by the record before us, it would appear to be wholly unnecessary to discuss in detail the evidence and history of the controversy or the additional contentions now made on appeal by Alpine County. It is sufficient to note that prior to instituting the present proceeding, the board of supervisors of Alpine County, by resolution, requested the State Lands Commission to make a full and complete investigation and survey of the disputed boundary between it and the defendant counties; that pursuant to such request the Lands Commission commenced its survey; that the minutes of the final meeting the Commission held on the matter show that certain findings were approved but it was concluded that no action should be taken to survey and mark said boundary pending the outcome of the present litigation.

Thus at the outset if the trial court did not have jurisdiction to entertain the action by reason of the proceeding previously instituted by Alpine County and, still pending before the Lands Commission, that court was without power to proceed and the defendants' demurrers were properly sustained. Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942, 132 A.L.R. 715. It is too well established to warrant extended citation of authority that ‘* * * where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ 17 Cal.2d 280, 292, 109 P.2d 942, 949. Furthermore, ‘* * * it lies within the power of the administrative agency to determine in the first instance, and before judicial relief may be obtained, whether a given controversy falls within the statutory grant of jurisdiction.’ United States v. Superior Court, 19 Cal.2d 189, 195, 120 P.2d 26. It necessarily follows that ‘jurisdiction to entertain an action for judicial relief is conditioned upon a completion of the administrative procedure.’ 19 Cal.2d 189, 194, 120 P.2d 26, 29; Abelleira v. District Court of Appeal, supra.

The judgment is affirmed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.