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District Court of Appeal, Fourth District, California.

APPLE VALLEY RANCHOS WATER COMPANY, a California corporation, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent.

Civ. 7342.

Decided: May 20, 1965

Ball, Hunt & Hart and Clark Heggeness, Long Beach, for plaintiff and appellant. Stanford D. Herlick and Robin S. Heyer, San Bernardino, for defendant and respondent.

Appellant is the owner of a water distribution system in Apple Valley, San Bernardino County. As a part of the distribution system, it has the exclusive right (referred to as ‘flow rights') to the use of pipelines extending through real property subdivided into some 9,000 building lots, of which only approximately 935 were occupied and served by the water company during the fiscal years 1958–1959 and 1959–1960. For some reason, perhaps because of the physical distribution of the homes of the users, the entire system of pipelines was in service. The pipelines were constructed and installed by the subdivider at a cost to it of $1,453,560, without cost to the appellant except for the additional sum of $78,320. The assessed valuation of the pipelines and service connections for 1958 was $661,890 and for 1959 was $671,120. Other properties of appellant are not involved.

Appellant made appropriate requests for equalization of the assessed value of flow rights and service connections to the San Bernardino County Board of Supervisors for each of the two years in question, which in each instance was refused. Having paid the taxes under protest, appellant has filed this action to recover the taxes so paid.

The method of valuation employed was described by the deputy assessor who made the appraisals as follows: The historical cost of the pipelines was first established; that figure was then reduced for depreciation at the rate of 2 1/2 per cent per year; 20 per cent of the remaining figure was next considered as representing the number of service connections in use (the actual percentage was represented by the symbol 9000/935); the other 80 per cent of the depreciated cost was further reduced by 50 per cent thereof, referred to as the ‘limited use factor’; the 20 per cent of depreciated cost and the 50 per cent of 80 per cent of depreciated cost were then added together; the product thereof was the market value; to that sum was applied the ‘equalization factor’ of 25 per cent, producing the assessed value of the pipelines and service connections. The reason for using 50 per cent as the ‘limited use factor’ was to conform to a policy of the assessor's office that the assessed value of any property should never be less than 12 1/2 per cent of historical cost undepreciated. The effect of applying the 50 per cent ‘limited use factor’ to 80 per cent of the historical cost of the system was equivalent to reducing the cost of the entire system by 40 per cent (the percentage mentioned in the ‘Statement of County Assessor’ considered by the board of supervisors at the August 13 meeting mentioned hereinafter).

The net earnings of appellant in 1957 were $13,905.44 and in 1958 $15,555.00. In 1959, it suffered a bookkeeping loss based upon a fictitious amortization of acquisition adjustment.

The Public Utilities Commission has control of the rates which appellant might charge for water, but had not fixed a rate. During the two years in question, the price at which appellant sold water to consumers was substantially less than the rate charged by a comparable water company (Hesperia). In fixing rates, the Public Utilities Commission in practice allows as the base for determining a reasonable return to the company only that proportion of the cost of a system represented by the proportion of actual users to the total potential; in other words, the Commission does not permit the imposition of an undue burden upon the actual consumers in order to furnish a return on the cost of the total system; nor does it permit as a factor in the operating costs for the purpose of fixing a fair return the inclusion of the proportion of taxes paid on the value of that part of the total system not serving users.

The action was tried on February 26, 27 and 28 and on March 1, 5, 7 and 26 of 1962. A contention made by appellant earlier that the flow rights were not subject to taxation was abandoned at the trial, the single issue litigated being the propriety of the method of valuation used by the county assessor.

Judgment was entered on July 18, 1962 which adjudged, on the basis of written findings of fact, that the assessments for the years in question are ‘arbitrary, erroneous, invalid, unfair, unlawful and an abuse of discretion, and are hereby cancelled and annulled’; the board of supervisors was ordered to reassess and equalize said property for the years in question, ‘using a proper method of valuation.’ It was adjudged that plaintiff ‘is entitled to a judgment against defendant for an amount equal to the difference between the amount of taxes paid for said years and the amount of taxes found to be due after reassessment and equalization’; the judgment provided further that ‘The court shall retain jurisdiction of this action to make such orders as may be necessary or appropriate’ and that ‘Plaintiff is entitled to its costs in the sum of $345.25.’ The findings as to each of the two years were that:

‘Said assessments, assessed values and taxes were and are arbitrary, erroneous, invalid, unfair, unlawful and an abuse of discretion. Said Board acted arbitrarily and abused its discretion in failing to reduce, adjust or equalize said assessments, assessed values and taxes. Among other matters, said Assessor and said Board used an improper method of valuation.’

In both the findings and judgment, the words ‘excessive, capricious' in the form requested were stricken by the trial judge, as were the following words, applied to the action of the assessor and the board of supervisors: ‘and failed to give consideration to the earning power of plaintiff, derived from the use of said property.’

Notice of entry of judgment was served on July 27, 1962 and filed July 30. No appeal was taken from the judgment.

The board of supervisors met on August 13, 1962 for the purpose of equalizing the taxes and assessments for the two years in question, and also those on the properties of the appellant for the fiscal year 1962–1963. Evidence was received by the board and it made written findings of fact set forth in its minutes. It found the equalized assessed valuations of the properties of appellant for the two years in question in amounts identical to the valuations previously placed upon them and attacked in the present action. The minutes recited:

‘IV The Board has considered earning power, both present and anticipated.

‘In determining present earning power, the Board has taken into consideration the relevant evidence offered concerning actual past earnings, rate-making practices of the Public Utilities Commission, comparative water rates of comparable water systems, consumer density relative to maximum use of the system, fair rate of return, failure to apply to the Public Utilities Commission for rate increases and all other matters presented relative thereto.

‘In determining anticipated growth in earnings, the Board considered prospective growth of the area and the history of growth of the system in number of customers, area and consumer density.

‘V The Board has also considered the historical cost, reasonable depreciation, extent of use and status of ownership of the physical plant.’

Among findings made by the board were the following:

‘VI The Assessor used, in valuing this system, a method of valuation which started from historical cost, with due allowance for depreciation.

‘VII The method used with respect to this system by the Assessor is the one used in valuing all of the hundreds of water systems in this County.

‘VIII The method used by the Assessor with respect to the system under consideration contained a just and proper allowance for low density of customers relative to total capacity which effectually gave adequate weight to earning power, except as hereinafter set forth, and such method was a proper one for valuation of the subject property.

‘IX The results obtained by the Assessor's valuation are confirmed and consistent with the results of the consideration by this Board of all the factors set forth in paragraphs IV and V of Findings herein, and are fair, just and an accurate valuation of the properties assessed for taxation purposes, except as hereinafter set forth.’

On October 17, 1962, appellant served and filed ‘notice of motion to vacate and annul findings and order of the board of supervisors fixing value of property or, in the alternative, for an order setting the case for retrial upon said valuation.’ On November 2, the date set for the hearing of the motion, appellant requested an opportunity to file supplemental pleadings and a continuance for that purpose. The matter was continued to November 30, at which time the court had before it the minutes of the board of supervisors covering the equalization hearing on August 13 and an affidavit of counsel for appellant to which the minutes were attached. Also attached was evidence presented to the board of supervisors at the August hearing in the form of a statement of the county assessor. That statement contained a declaration that the assessor had given consideration to the replacement cost less depreciation, sales analysis and capitalized earning ability of the property; it contained information as to the sale of another water company at $373 per service connection which, if applied to appellant's situation, would have resulted in a price of $516,575; it contained a comparison of the price at which water was sold by appellant and another similar water company, showing a rate differential of 53 per cent in favor of the consumers using appellant's system; it contained what is denominated ‘Summation Approach,’ which sets forth the method of valuation used by the assessor in his original valuation, including the following statement: ‘This method indirectly recognizes income in that the absence of income sufficient to support the full cost resulted in an additional 40 per cent discount from the normal’; and it contained finally a calculation of value based upon capitalization of anticipated income on an average of net income over a three-year period, making an allowance for the fact of partial use only of the appellant's facilities.

Following the hearing on November 30, the court announced that the appellant's motion was denied in toto. On December 5, 1962, at 11:38 a. m., there was filed with the clerk of the superior court a notice of appeal dated December 4, 1962 ‘from the order made * * * on November 30, 1962’ denying appellant's motion. Also bearing the file stamp ‘December 5, 1962 11:38 a. m.,’ is a written order denying the motion to vacate and annul findings. This is a document of seven pages in which the court sets forth its views on what it had decided in the judgment theretofore entered. Among other things, the court states the following:

‘This Court found the former assessments arbitrary, excessive, capricious, erroneous, invalid, unfair, unlawful, and an abuse of discretion.’ [Emphasis added.]

The order further contains this language:

‘This Court noted that defendant did not consider earning power, and therefore used an erroneous and improper method of valuation in that respect as well as in not seeking fair market value.’ [sic]

and again:

‘We also ordered the Board to use ‘a proper method of valuation.’ We did not specify any particular method, but required that the Board ‘take evidence of, and consider, the earning power of the plaintiff derived from the use of said property.’' [sic]

The court concluded:

‘Reaching the same result * * * is not equivalent to using the same method, and is neither inconsistent with our prior findings and judgment nor arbitrary in view of the evidence which plaintiff's own exhibits show was presented to the Board.’

Finally, the court made certain findings, two of which are interpretations of the prior findings and judgment, and others of which found that despite the same result the board did not use the identical method of valuation it had used before and that the board had in all respects fully complied with the judgment and that the court's special retention of jurisdiction should be terminated.

It is appellant's position that the method of valuation used by the board of supervisors in the August hearing was the very method used by the assessor in making his original assessment; that the judgment of July 18 is a final adjudication that that method was arbitrary and unfair; that the judgment is res judicata as between the parties, and in effect is binding upon the trial court as the law of the case in any further proceedings had in the action to secure the enforcement of the judgment; that the order denying appellant's motion to set aside and cancel the result of the purported equalization made by the board of supervisors on August 13 or for a further hearing was an order made after final judgment and is therefore appealable.

Appellant contends further that the written order filed December 5, 1962 was beyond the power of the court to make, inasmuch as a notice of appeal had been filed on that date.

Respondent contends that the judgment of July 18, 1962 was not a final judgment within the meaning of section 963 of the Code of Civil Procedure; that the order of November 30, 1962 denying appellant's motion is therefore not an appealable order; that the method of valuation used by the board of supervisors on August 13, 1962 was not the same method as that used by the assessor in making his original assessment; that in any event, the method used by the assessor was a proper method; that the court in its judgment of July 18, 1962 did not condemn that method; that the court had inferred that the assessor himself did not seek to determine the market value of the property from the fact that an expert (Edward Fitzgerald Dibble), who furnished the formula used by the assessor in making his valuation, did not intend by the use of such formula to arrive at the market value of appellant's property; that such failure on the part of the assessor was the object of the court's condemnation; that even if the judgment of July 18 be interpreted as condemning the use of the historical cost less depreciation approach to valuation, that judgment is not conclusive because it is not a final judgment; and if the method used by the board of supervisors on August 13 was the same method as that used by the assessor in making his original assessment, the written order dated and filed December 5 found the method to have been a proper one; consequently, respondent argues (although no motion was made to dismiss the appeal), there is nothing before the court to be decided upon the merits.


‘Actions to recover taxes paid under protest are equitable in nature.’ (Simms v. County of Los Angeles, 35 Cal.2d 303, 316, 217 P.2d 936, 944.)

It is not for the court in such an action to perform valuation or equalization functions which are vested exclusively in the local board of equalization. (Simms v. County of Los Angeles, supra; Universal Cons. Oil Co. v. Byram, 25 Cal.2d 353, 153 P.2d 746.)

The county board of equalization is the fact-finding body designated by law to remedy excessive assessments, and when that tribunal, after due hearing and within the limits of reasonable discretion, makes its findings on the facts, such decision is final and conclusive. (Universal Cons. Oil Co. v. Byram, supra; Eastern-Columbia, Inc. v. County of Los Angeles, 61 Cal.App.2d 734, 143 P.2d 992.)

A determination of a county board of equalization will not be rejected by a reviewing court if there is in the record substantial evidence to support the board's determination. (A. F. Gilmore Co. v. County of Los Angeles, 186 Cal.App.2d 471, 9 Cal.Rptr. 67; Eastern-Columbia, Inc. v. County of Los Angeles, 70 Cal.App.2d 497, 161 P.2d 407.)

The power of the court over the findings of the board of equalization is similar to that exercised by the court in a mandamus proceeding to review the action of a statewide agency defined in Black v. State Personnel Board, 136 Cal.App.2d 904, 289 P.2d 863.

However, it is the function of the court to determine whether the method used by the assessor was legitimate and fair and was a reasonable method to use in arriving at the value of the property in question, and then to ascertain whether there was substantial evidence before the equalization board to justify the assessment as made. (Michael Todd Co. v. County of Los Angeles, 57 Cal.2d 684, 21 Cal.Rptr. 604, 371 P.2d 340; County of Tuolumne v. State Board of Equalization, 206 Cal.App.2d 352, 24 Cal.Rptr. 113.)

The propriety of the method of valuation used must depend upon the circumstances. In County of Tuolumne v. State Board of Equalization, supra, the court rejected the original cost method as misleading, and approved the method used by the assessor who fixed the value of the water rights by the capitalization method, based, however, not upon profit realized in the sale of water, since that was done on a non-profit basis, but upon the price paid for water under contracts between other agencies.

In Alpaugh Irr. Dist. v. County of Kern, 113 Cal.App.2d 286, 248 P.2d 117, the method used was the capitalization method based upon the net profit realized from the sale of water by the appellant.

In De Luz Homes, Inc. v. County of San Diego, 45 Cal.2d 546, 290 P.2d 544, the method approved was to determine the present value of the net income to be derived during the remaining life of a leasehold estate and upon such determination capitalize such present value to reach the value of the leasehold estate. The court considered that method to be proper in view of the fact that the gross income of the taxpayer from the leasehold estate was to be determined and limited by rental fixed by the Federal Government.


Recognizing that in proper circumstances cost may serve as a point of departure from which the assessor may proceed to determine ‘full cash value’ (Michael Todd Co. v. County of Los Angeles, supra, 57 Cal.2d 684, 21 Cal.Rptr. 604, 371 P.2d 340), we agree with the finding of the trial court in the case at bench made in its judgment of July 18, 1962 that the assessor and the board of equalization ‘used an improper method of valuation.’ Nor do we construe that phrase ‘used an improper method of valuation’ to be descriptive of a purpose on the part of the assessor to arrive at something other than the full cash value or market value of the property. The object sought by the assessor is a determination of such full cash value and is therefore the end to be attained by the assessment; the method of valuation is the means used toward that end. There is a presumption that the assessor performed his official duty by determining what he believed to be the full cash value, and we will assume that such was his intention, despite the evidence of the expert consultant that in the preparation of the formula which he furnished to the assessor he was not seeking to determine market value. Moreover, testimony of Heiman Oosterbroek, deputy assessor, who made the actual appraisal, is that he was attempting to fix the fair market value.

In County of Tuolumne v. State Board of Equalization, supra, 206 Cal.App.2d 352, 24 Cal.Rptr. 113, the cost to the City of San Francisco of water rights which were the subject of taxation did not furnish a fair basis for determining present value of those rights, because the cost to the city was much less than the present value. For another reason, the cost of the pipeline system used by appellant in the case at bench may not be a reasonable base for determining present market value of the system. The factor of 40 per cent employed by the assessor to reduce the depreciated cost as a balance against the partial use of the system by a small percentage of its potential was arbitrary and seems to bear no relationship to the actual circumstances.

It is clear that the method followed by the board of supervisors in the August hearing, if the self-serving recitals and findings be disregarded, was the identical method used originally. It seemed to have been equally clear to the trial court.

In view of the rate-making power of the Public Utilities Commission, a proper method of valuation of appellant's flow rights would be one based upon the capitalization of the present value of anticipated income during the estimated remaining life of the system, so that such present value of anticipated income would represent a fair return on the value of the property. That anticipated income would be based not upon the actual net income of the appellant, but upon what would have been its net income in the years in question if it had made a charge for water comparable to that of a similar system such as Hesperia. In arriving at the present value of the anticipated future income, the method approved in De Luz Homes, Inc. v. County of San Diego, supra, 45 Cal.2d 546, 290 P.2d 544, of eliminating accrued depreciation should be followed. There should also be eliminated the fictitious item for amortization of acquisition adjustments.

The service connections are all in use. For that reason, a separate valuation of the service connections based upon historical cost less depreciation would not be improper.


The question of the finality of judgment so as to permit operation of the doctrine of res judicata has made excessive demands upon the time of appellate courts.

Whether the doctrine of res judicata applies in the case at bench depends upon the finality of the judgment of July 18.

‘* * * the rule of res judicata * * * ‘* * * is not effective when there has been as yet no final judgment on all the issues between the parties.’ Pillsbury v. Superior Court, 8 Cal.2d 469, 472, 66 P.2d 149, 150.' (American Enterprise, Inc. v. Van Winkle, 39 Cal.2d 210, 218, 246 P.2d 935, 939.)

In that case, a party appealed from a portion of a judgment which was adverse to him, and not from the entire judgment, and the other party did not appeal from the portion of the judgment which was adverse to him. The doctrine of res judicata did not necessarily apply to those portions of the judgment from which no appeal was taken.

In In re Los Angeles County Pioneer Society, 40 Cal.2d 852, 257 P.2d 1, the following guides were laid down to assist in determining whether a judgment or decree is final:

‘The label of the judgment as ‘interlocutory’ is not determinative upon this question, since it is the substance and effect of a judgment that determines its finality. Lyon v. Goss, 19 Cal.2d 659, 669–670, 123 P.2d 11; Peninsula Properties Co. v. County of Santa Cruz, 106 Cal.App.2d 669, 678, 235 P.2d 635. An appeal lies only from a final judgment, except in certain cases not applicable here. Code Civ.Proc. § 963. ‘As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or non-compliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.’ Lyon v. Goss, supra, 19 Cal.2d 659, 670, 123 P.2d 11, 17.' (40 Cal.2d pp. 857–858, 257 P.2d p. 4.)

A judgment is not final in an accounting action between parties which does not establish the proportional rights of the partners and which contemplates a further audit (Bakewell v. Bakewell, 21 Cal.2d 224, 130 P.2d 975); where a decree provides for a personal judgment in favor of one who is not a party to the action, for any amounts shown to be due to her by an accounting when she shall have been brought in as a party by the service of summons (First Nat. etc. Bk. of San Diego v. Superior Court, 19 Cal.2d 409, 121 P.2d 729); where a decree reserves for future consideration not only the matter of compliance or noncompliance with its terms, but also issues pertaining to performance and prevention of performance of the agreement out of which the litigation arose (Lyon v. Goss, supra, 19 Cal.2d 659, 123 P.2d 11); where a judgment was reversed and the cause remanded for further proceedings not inconsistent with the views expressed by the District Court of Appeal, which, however, did not give an express direction to enter a specified judgment (Pillsbury v. Superior Court, 8 Cal.2d 469, 66 P.2d 149); where the judgment relied upon did not clearly determine the issue upon which the second action between the same parties was based (Stout v. Pearson, 180 Cal.App.2d 211, 4 Cal.Rptr. 313); where the decree relied upon expressly recited ‘* * * this is an interlocutory judgment only and the Court hereby expressly retains and reserves jurisdiction of all proceedings until final judgment, in order to make final determination of the rights of the parties' (Olmstead v. West,177 Cal.App.2d 652, 653, 2 Cal.Rptr. 443); where the court reserved jurisdiction to make certain determinations which might have resulted in a money judgment in favor of one party or a money judgment in favor of the adversary party (Craig of California v. Green, 89 Cal.App.2d 829, 202 P.2d 104); where the judgment relied upon had been referred to in a decision of the Supreme Court denying a writ of prohibition, as an ‘interlocutory judgment’ and not a final judgment (Wilson v. First Nat. Trust & Sav. Bank, 73 Cal.App.2d 446, 166 P.2d 593); where the judgment relied upon was merely a determination of certain preliminary questions as a result of a stipulation that the trial of other issues should be deferred until those questions were decided (Whitacre v. Hall, 40 Cal.App.2d 68, 104 P.2d 401); where the trial judge and all counsel apparently believed that the judgment was not final and elements of estoppel existed to deny to one of the parties the right to rely upon the doctrine of res judicata (Security-First Nat. Bk. of Los Angeles v. Superior Court, 132 Cal.App. 683, 23 P.2d 1055).

A judgment has been accorded the dignity of finality where it declared a deed absolute to be an equitable mortgage, determined the amounts due and provided that if the plaintiff mortgagor failed to pay such sums within 60 days from the date upon which the judgment became final, defendant might apply in the same action for a decree of foreclosure and sale, and where as the result of an appeal further sums were advanced by defendant (Beeler v. American Trust Co., 28 Cal.2d 435, 170 P.2d 439).

In Beeler v. American Trust Co., supra, the court said, at pages 437–438, 170 P.2d at page 441:

‘Said judgment is now final, and its provisions for allowance of interest are not open to attack on this appeal. Code Civ.Proc., § 1908. Contrary to appellant's claim, it was in no sense an interlocutory decree by reason of provision for possible future foreclosure * * * in satisfaction of the judgment. Rather it ‘was a complete and final determination of the rights of the parties' then in controversy and it became ‘none the less so because it reserved for future consideration [an] independent branch of the case.’ Perry v. West Coast Bond & Mortgage Co., 136 Cal.App. 557, 559, 29 P.2d 279, 280.'

In Brown v. Memorial Nat. Home Foundation, 158 Cal.App.2d 448, at pages 454–455, 322 P.2d 600, at page 604, 72 A.L.R.2D 997, the court said:

‘* * * we readily conclude that the judgment here under consideration is final because it leaves undetermined no substantial issue affecting appellants' rights.’

In Wynn v. Treasure Co., 146 Cal.App.2d 69, at page 78, 303 P.2d 1067, at page 1073, it was said:

‘Defendants' argument is that the Westover judgment is not a final judgment and therefore is not res judicata as to any issue in the present case. We think the judgment is res judicata as to some issues and that it is not as to others.’

In Perry v. West Coast Bond etc. Co., supra, 136 Cal.App. 557, at page 559, 29 P.2d 279, at page 280, the court said:

‘* * * by the terms of the stipulation and the judgment, the course which was to be followed either if redemption was or was not made was fully determined. There was, therefore, no issue of either law or fact left to be determined in the final judgment except the fact of either compliance or noncompliance with the terms of the first decree.’

As stated in many of the authorities cited, the doctrine of res judicata applies to a subsequent action between the same parties or their privies. There would be no question that under the July 18 judgment the impropriety of the method of valuation was res judicata if appellant had filed a second action rather than to make the motion that was made in the original action. (Guaranty L. Gorp. v. Board of Supers., 22 Cal.App.2d 684, 71 P.2d 931.) However, the doctrine has been applied where in the same action there has been a final judgment or an appealable order followed by an attempt to relitigate an issue previously decided. (Wheeler v. Eldred, 137 Cal. 37, 69 P. 619; Anderson v. Great Republic L. Ins. Co., 41 Cal.App.2d 181, 106 P.2d 75.)

Respondent, in support of its contention that the July 18 judgment is not a final judgment as to the method of valuation, argues that the trial court considered it to be interlocutory and inconclusive regarding the issues concerning value. However, respondent continues, ‘the first judgment of the Court herein can be construed only as res judicata that there was no merit to appellant's case.’

The trial court makes it clear that it considered the July judgment to be binding upon the board. It was acted upon as though binding. It awarded costs; it provided for a money judgment in favor of appellant according to a fixed formula; it was supported by findings. Respondent cites Guardianship of Di Carlo, 3 Cal.2d 225, 44 P.2d 562, 99 A.L.R. 990, and Nevarov v. Caldwell, 161 Cal.App.2d 762, 327 P.2d 111, as authority that the doctrine of res judicata is not to be applied so rigidly as to defeat justice; and that there may be exceptions in its operation based upon public policy. No reason is suggested why it should not be given effect in this case, if otherwise applicable, nor is any such reason apparent.

We conclude that the judgment of July 18, 1962 was a final judgment and as between the parties is a final adjudication that the method of appraisal originally used by the county assessor is improper.


An order which finds that there has been compliance with the conditions imposed by an earlier order is appealable. (Reeves v. Hutson, 144 Cal.App.2d 445, 301 P.2d 264; Allegretti v. Board of Osteopathic Examiners, 145 Cal.App.2d 435, 302 P.2d 694.)

The question whether an appeal is from a minute order or from a subsequent written order memorializing the action reflected in the minute order generally has arisen in situations in which the timeliness of an appeal was involved. No such problem is found here.

The interests of justice will be served if the present appeal be considered not only as an appeal from the minute order of November 30, but also as from the formal written order of December 4. We do not consider it important that the notice of appeal appears to have been filed at the same minute as the written order. Even if it were filed prematurely, it might be given effect. (Rules on Appeal, Rule 26.)

The notice of appeal does not describe the written order of December 4. It may, nevertheless, be considered as an appeal therefrom. (Burrows v. Jorgensen, 158 Cal.App.2d 644, 646, 323 P.2d 150.) ‘A notice of appeal shall be liberally construed in favor of its sufficiency.’ (Rules on Appeal, Rule 1(a).) See also Helfer v. Hubert, 208 Cal.App.2d 22, 24 Cal.Rptr. 900; Sharick v. Galloway, 12 Cal.App.2d 733; Driskill v. Thompson, 141 Cal.App.2d 479, 296 P.2d 834.)

Neither party will suffer prejudice by our decision to consider this as an appeal from the minute order and the written order.


The doctrine of the law of the case is not the same as the doctrine of res judicata. (Pigeon Point Ranch, Inc. v. Perot, 59 Cal.2d 227, 28 Cal.Rptr. 865, 379 P.2d 321; Estate of Davis, 151 Cal. 318, 327, 86 P. 183, 90 P. 771.)

The doctrine of the law of the case is defined in Allen v. California Mutual B. & L. Ass'n, 22 Cal.2d 474, 481, 139 P.2d 321, 325, as follows:

‘It is a rule of general application that all questions and issues adjudicated on a prior appeal are the law of the case upon all subsequent appeals and will not be reconsidered. * * * This doctrine applies to decisions of the District Courts of Appeal after they have become final.’

In People v. Marshall, 209 Cal. 540, 289 P. 629, on a second appeal from a judgment of conviction in a criminal case, where the trial court after the first trial had pronounced judgment without trying the issue of the defendant's sanity, the court refused to re-examine questions raised on the first appeal with regard to the issue of the defendant's plea of not guilty, and said at page 545, 289 P. at page 631, quoting from People v. Hamilton, 103 Cal. 488, 496, 37 P. 627, 630:

“It is not doubted but that a ruling by the appellate court upon a point distinctly made upon a previous appeal is, in all subsequent proceedings in the same case, a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves.”

In Nielsen v. Industrial Acc. Com., 220 Cal. 118, 29 P.2d 852, the effect of a decision reviewing an order of the Industrial Accident Commission, by which decision the matter was remanded for further proceedings and findings, was considered when the second order after such rehearing was before the court for review. The court said at pages 120–121, 29 P.2d at page 853:

‘* * * the commission is bound to follow the holding of the court on review so far as applicable, but is not foreclosed from receiving additional evidence which might have the effect of supplying the necessary proof which was lacking on the former record. If the record is not changed in any substantial respect, the law of the case as established on the review would be held determinative.’

The court below sat as the reviewing court with relation to the actions of the board. As applied to the case at bench, the doctrine of the law of the case requires that the original method of valuation, condemned by the judgment of July 18, be rejected by the board of supervisors, and that the court below in passing upon the action of the board require that the board employ a different method.

Such would be the result even though the court had been in error in its judgment of July 18. (Allen v. Bryant, 155 Cal. 256, 100 P. 704.)

The orders appealed from are reversed with directions to the trial court to find that the purported equalization did not conform to the judgment of July 18, 1962, and to order the board of supervisors to equalize the assessments of the flow rights in accordance with the opinions expressed herein.

WHELAN, Justice.

BROWN, P. J., and COUGHLIN, J., concur.