WALLACE RANCH WATER CO v. FOOTHILL DITCH CO (1935)

This is an action to quiet title to 3 cubic feet of water per second diverted by plaintiff from the Kaweah river, and a one-third interest in the ditch by which the water is conveyed from the diversion point to what was known and to which we will refer as the Wallace ranch. The answer admits the ownership of the water right and the right to have the water diverted from the river and flowed through the ditch by defendant, but disputes any ownership in the ditch by plaintiff and any interest in it other than that first mentioned. The plaintiff is a mutual water company and the defendant is a public utility under the jurisdiction of the Railroad Commission.

Defendant presents three grounds for a reversal of the judgment: (1) A conflict in the findings of fact; (2) the question of the jurisdiction of the Superior Court to nullify an order of the Railroad Commission (section 67, Public Utilities Act, St. 1915, pp. 115, 161); (3) the failure of the trial court to pass upon defendant's right to divert 6 cubic second feet of water as equal with plaintiff's right to divert 3 cubic second feet from the Kaweah river.

A proper understanding of the questions here presented requires a somewhat careful summary of the evidence. As is not unusual in cases involving water rights which originated in the early years of California's statehood, where the original actors are dead, and the historical facts have to be very largely gleaned from the memory of those not their contemporaries, some uncertainty appears in the sequence of the events involved. We have carefully studied the testimony of the witnesses and the voluminous exhibits and believe that we have gained a fairly accurate conception of the events in the proper sequence of their happenings.

About the year 1857, John Swanson owned land in what is now Tulare county and which was riparian to the Kaweah river, and by means of a ditch diverted water from the river which he put to beneficial use on his property. Shortly after 1863 the land, ditch, and water rights were acquired by J. W. C. Pogue, W. H. Wallace, and C. W. Crocker as tenants in common. In 1875 they enlarged the ditch, which became known as the “Pogue, Wallace and Crocker Ditch,” and increased the amount of water appropriated and put to beneficial use. In 1877 they constructed a dam in the channel of the river, just below the head of this ditch, to maintain the flow of water they had been diverting. This diversion dam remained intact in the river until the early part of 1890.

Prior to November 2, 1883, J. W. C. Pogue acquired the one-third interest of C. W. Crocker in the land, ditch, and water rights. W. H. Wallace had died and Emeline Wallace was the duly appointed, qualified, and acting administratrix of his estate. J. W. C. Pogue brought an action against the administratrix and the heirs at law of the deceased, and a decree of partition was rendered on November 2, 1883. The land and water was divided between the parties and the decree confirmed the report of the referees appointed to partition the property. In this report we find that the lands allotted to Pogue were to be “charged with the servitude hereinafter specified.” The report then proceeded to set apart a portion of the property to the defendants and provided that “said referees have further set apart and allotted to the said defendants Emeline Wallace, Cora A. Wallace and William Henry Wallace, and as appurtenant to said lands allotted to them as aforesaid, a perpetual easement and right of way, on and across said lands allotted to J. W. C. Pogue as aforesaid to flow and convey over and across the same and in said water ditch, one-third of all the water appertaining to the said ditch or which the said ditch may lawfully divert from said Kaweah River.” The decree of partition contains the following: “And it is further ordered, adjudged and decreed that said defendants, Emeline Wallace, Cora A. Wallace and William Henry Wallace are the owners, as appurtenant, to said lands last above described, of a perpetual easement and right of way, on and across the said lands hereinbefore adjudged and allotted to said plaintiff J. W. C. Pogue, to flow and convey over and across the said lands, in that certain irrigation ditch, situate thereon and referred to in said Referees' report, one third of all the water appurtenant to said ditch, and which said ditch may lawfully divert from the Kaweah River.”

Plaintiff derives its title to its water right and interest in the ditch from Emeline, Cora A., and William Henry Wallace; and defendant derives its title from J. W. C. Pogue, each through various mesne conveyances. Up to, at least, 1890 the ditch was called the “Pogue, Wallace and Crocker Ditch.”

In 1890 the dam across the river was blown out. Pogue proceeded to construct another intake for the ditch. He went down stream about 600 feet and built another dam, dug through the river bank into a slough which was sometimes referred to as an old bed of the river, dammed the slough about 1200 feet from the opening, and diverted the water into a new ditch which extended southwesterly for about half a mile where it joined the Pogue, Wallace and Crocker ditch. Thereafter Pogue and his successors in interest diverted their water from the Kaweah river through this ditch. Defendant maintains that this new ditch and its subsequent extensions to the Wallace ranch has always been known as “Pogue's Lower Ditch” to distinguish it from the original Pogue, Wallace and Crocker ditch.

Just how the Wallace ranch owners obtained their water for several years after 1890 is not at all clear from the record. We gather and will assume from the testimony of C. E. Goodale, who was superintendent (lessee part of the time) of the Wallace ranch from 1895 to 1926, that it was taken out at the old Pogue, Wallace and Crocker heading and through the old Pogue, Wallace and Crocker ditch until 1896. In that year this dam was blown out and thereafter their water was taken from the river through the new Pogue heading and the 1/212 mile of new ditch which Pogue had constructed. Goodale testified: “I was friendly with Pogue and I arranged with him to take it out there.” Portions of the old Pogue, Wallace and Crocker ditch were visible at the time of the trial in 1931, but after 1896 it is probable that no water had been conveyed through that portion of it above its junction with the new ditch constructed by Pogue.

By stages, and between 1896 and probably about 1906, the new ditch, the first half mile of which Pogue had constructed in 1890, was continued as a ditch separate from the old Pogue, Wallace and Crocker ditch, to a point about 300 yards into the Wallace ranch property where it joined the old ditch which, at the time of the trial, continued through the Wallace ranch in about its original location and had been continued several miles beyond the boundaries of the Wallace ranch. By 1914 the new ditch had been replaced with a flume which was generally constructed in or over the ditch except in one place when a broad curve was eliminated. There is no showing that the plaintiff or its predecessors in interest contributed anything towards building the new ditch and flume. They were not charged anything for flowing their water through it for a number of years.

Plaintiff maintains that the new ditch was known indiscriminately as the “Pogue, Wallace and Crocker Ditch,” “Pogue's Lower Ditch,” and the “Foothill Ditch.” Defendant maintains that it was known as “Pogue's Lower Ditch,” “Bonnie Brae Ditch,” and the “Foothill Ditch” and never as the “Pogue, Wallace and Crocker Ditch,” which, according to its contention, was the exclusive name of the original ditch constructed by the three joint tenants whose names it bears.

Defendant maintains that the partition decree of 1883 gave plaintiff's predecessors in interest an easement in the old original Pogue, Wallace and Crocker ditch and in this alone; that there is no easement in the new ditch and that plaintiff has no property or interest in it other than the right to require defendant to divert 3 cubic feet a second of water from the Kaweah river and flow it through the new ditch to the Wallace ranch lands; that as it is a public utility plaintiff must pay the charges fixed by the Railroad Commission for these services. We do not understand that defendant contends that plaintiff cannot require it to divert the water from the Kaweah river and convey it to the Wallace ranch properties.

Plaintiff contends that it is the owner of an easement in the new ditch and that it can flow its water through that ditch and is, or may be, liable for one-third of the cost of its maintenance and operation. It maintains that the new ditch is a change of location of the old one which was made gradually over a period of years for the convenience of defendant and its predecessors in interest and that plaintiff is the owner of an easement in the new ditch. From this premise, plaintiff argues that as it is not a public utility the Railroad Commission has no jurisdiction and no right to impose a charge upon plaintiff for conducting its own water through its own right of way. The trial court generally found in accordance with plaintiff's contentions and rendered judgment accordingly.

Whether there were two separate ditches or only one which was merely a relocation of the first ditch is of vital importance to a settlement of this portion of the controversy between the parties. The names by which the new ditch as well as the original ditch were known must have an important bearing on its ultimate determination.

The parol evidence in the record is in conflict on the name bestowed on the new ditch. The documentary evidence is illuminating. The deed from Cora Wallace Morton (formerly Cora A. Wallace and who acquired the interests of Emeline and William Henry Wallace) and James H. Morton, her husband, to plaintiff, dated October 17, 1907, contains the following: “Also all the right, title and interest which the said parties of the first part or either of them have in or to those certain ditches known as the Pogue, Wallace & Crocker Ditch; the ditch known as Pogue's Lower Ditch; and the ditch known as and called the Bonnie Brae Ditch; or the ditch of the Central Water and Irrigation Company. Together with all water and water rights in the waters of the said Kaweah River owned by the parties of the first part or either of them, by reason of the ownership by said parties of the first part, or either of them of any interest in the said ditches above named or either of them, or of the waters diverted by said ditches or either of them.” The Central Water & Irrigation Company was a predecessor in interest of defendant. The first document in defendant's chain of title after the partition decree of 1883 is a deed from J. W. C. Pogue to Edward Records dated May 29, 1906. This deed contains the following: “And the said party of the first part doth hereby sell, assign, transfer and convey unto the said party of the second part all the right, title, interest and estate of the party of the first part, in and to that certain water ditch known as Pogue, Wallace and Crocker Ditch, and sometimes known as ‘Pogue's Lower Ditch,’ which said ditch commences in the Kaweah River. * * *” In it are also repeated phrases similar to the following: “Also, all that portion of the northwest quarter of said section two, in township eighteen south, range twenty seven east, lying north of the south bank of said Pogue, Wallace and Crocker Ditch, also called ‘Pogue's Lower Ditch.”’ The description of the ditch as the “Pogue, Wallace and Crocker Ditch,” sometimes known as “Pogue's Lower Ditch,” is repeated with immaterial variations in the following exhibits introduced by defendant in tracing its chain of title: Deed dated April 6, 1906, Edward Records to Central California Water & Irrigation Company; deed of trust dated July 16, 1906, Central California Water & Irrigation Company to Mercantile Trust Company as trustee; deed dated April 11, 1913, of H. B. McClure, commissioner on foreclosure of the foregoing deed of trust, to W. J. McLean, L. J. De Sabla, and Jules Mathieu; deed dated April 14, 1913, from W. J. McLean, Jules Mathieu, and Anne Mathieu, his wife, and Leon De Sabla to H. T. Miller; deed dated June 26, 1913, from H. T. Miller and Blanche Miller, his wife, to T. M. Dungan; deed dated September 26, 1913, from T. M. Dungan to Rosa S. Spaulding; deed dated April 15, 1914, from Rosa S. Spaulding to R. C. Merryman; deed dated May 6, 1914, from R. C. Merryman and Agnes H. Merryman, his wife, to Foothill Ditch Company.

In February, 1926, the Foothill Ditch Company filed its application with the Railroad Commission seeking permission to sell its property to the Lindsay-Strathmore Irrigation District. The application contained the following: “That the ditch, right of way, water rights and appurtenances which it is sought to transfer are described as follows, to-wit: All that certain water ditch or conduit and the concrete pipe line constituting an extension thereof now known as the Foothill Ditch, and formerly known as the Pogue, Wallace and Crocker Ditch, and sometimes known as Pogue's Lower Ditch. * * *” Attached to the application is the copy of a proposed contract of sale in which the foregoing description was repeated. A list of names of “Consumers of Water from Foothill Ditch as of January 1, 1926,” was also filed which does not contain the name of plaintiff. In this exhibit the following appears:

“Wallace Ranch Rights.

“The rights of the successors in title and interest of Emmaline Wallace, Cora Wallace and William Henry Wallace, as defined in a certain judgment and decree confirming report of referees, filed November 2, 1882, in a certain action then pending in the Superior Court of the County of Tulare, State of California, No. 671, wherein J. W. C. Pogue was plaintiff and Emmaline Wallace, Administratrix of the Estate of William H. Wallace, Deceased, Emmaline Wallace, Cora Wallace, William Henry Wallace, George W. Locke and Samuel Lavenson were defendants.

“Also, the rights, if any, of Cora Wallace Morton and her husband J. H. Morton, and their successors in title and interest, secured or arising out of a certain judgment dated January 26, 1904, entered in an action then pending in the Superior Court of the County of Tulare, State of California, No. 4657, wherein R. E. Hyde and the Wutchumna Water Company, a corporation, were plaintiffs, and the Kaweah Power and Water Company, J. W. C. Pogue, W. G. McVey, Harry Wilkson and others were defendants.

“The right of Cora Wallace Morton and James H. Morton, if any, under a certain modified judgment dated July 30, 1909, and entered in an action then pending in the Superior Court of the County of Tulare, State of California, No. 4823, wherein the Consolidated Peoples Ditch Company, a corporation, was plaintiff and J. W. C. Pogue, the Kaweah Power and Water Company, a corporation, Cora Wallace Morton and James H. Morton were defendants.”

We have already quoted from the decree of partition dated November 2, 1883, incorrectly given as 1882 in the foregoing quotation. We do not find in the record any judgment dated January 26, 1904, in the case of R. E. Hyde and Wutchumna Water Company v. Kaweah Power & Water Company, J. W. C. Pogue, et al. There is a judgment dated October 18, 1909, bearing the same number and with the same parties plaintiff. It appears from the judgment roll in that case that Pogue had succeeded to the interest of the Kaweah Power & Water Company and that the Central California Water Company had succeeded to the interest of Pogue and had been substituted as defendant in his place. The judgment is based on a stipulation and it is recited that the substituted defendant had the right to divert from the Kaweah river, subject to diversions by the plaintiffs (Hyde et al.), 6 cubic second feet of water “through the said Pogue, Wallace and Crocker Ditch, sometimes called Pogue's Lower Ditch, at the head-gate of said Ditch.” An amendment to the answer of Pogue in that case filed on February 26, 1902, contains the following allegations: “And this defendant further alleges that after the partition of said land first above described, between this defendant and his said associate, said C. W. Crocker, and the heirs at law of said W. H. Wallace, as hereinbefore stated in this paragraph of this answer, up to the commencement of this action, this defendant continued to own and use, a two third undivided interest in and to said Pogue, Wallace and Crocker ditch, and to the water diverted thereby, and that ever since the latter part of the year 1883, he has used said Pogue, Wallace and Crocker ditch, for the irrigation of three hundred acres of land.” We cannot find in the record the modified judgment dated July 30, 1909, in the case of Consolidated Peoples Ditch Company v. J. W. C. Pogue et al.

In 1915 the defendant filed its application with the Railroad Commission for permission to increase its rates. The opinion of the commission contains a report of the commissioner who took evidence on the hearing. In this report the following appears: “There is one user of water, namely, C. E. Goodale, of the Wallace Ranch, who transports water through the ditch of the Foothill Ditch Company from the Kaweah River to his ranch, some three miles from the intake. For this service he pays nothing at present. Mr. Goodale has an adjudicated right to divert three cubic feet per second from the water of the Kaweah River and owns a third interest in the ditch from his ranch to the intake. I am of the opinion that Mr. Goodale should bear his proportional part of the expense of maintaining and operating the ditch.” The commission ordered that $5 per second foot per month be paid “for all water transported for use at the Wallace Ranch.” It is evident that the water rights referred to in the foregoing report were not owned by Goodale, but were the property of plaintiff.

In 1921 defendant made another application to increase its rates. In the order of the Railroad Commission dated November 17, 1921, the following appears: “Carrying charge for water used at the Wallace (Goodale) ranch, per second-foot per month–6 00.”

It is admitted that the owners of the Wallace ranch did not pay the transportation charges fixed by the Railroad Commission. They did pay the defendant $150 a year, though when these payments were commenced does not appear. Plaintiff maintains that it was not made a party to these two hearings before the Railroad Commission.

In 1928, the Railroad Commission established new rates for the Foothill Ditch Company. The Wallace Ranch Water Company, and another, petitioned for a rehearing on the ground that they had been given no notice of the original hearing. In its opinion (33 Opinions and Orders of the Railroad Company, p. 237) the Railroad Commission said: “The Wallace Ranch Water Company contends that it has an adjudicated right to use three cubic feet of water per second from the waters of the Kaweah River and the right to convey said three cubic feet of water free of charge through the present Foothill Ditch a distance of approximately three miles. * * * Claiming the ownership of the above three second-feet of water, and also the ownership, as co-tenant, of a one-third undivided interest in a portion of the Foothill Ditch, the Wallace Ranch Water Company contends that the Commission has exceeded its jurisdiction in undertaking to adjudicate the question of the water rights and ditch rights of the Foothill Ditch Company and the Wallace Ranch Water Company and that the Commission furthermore has no jurisdiction to impose any charges whatsoever upon said latter company for the waters which it has received and is entitled to receive through said Foothill Ditch.

“In connection with petitioner's allegations involving the title and ownership to the ditch system and the water rights, a consideration of our Decision No. 19,964 establishing the rates involved in this proceeding fails to disclose any attempt upon the part of the Commission to adjudicate or to determine in any manner whatsoever the title to all or any part of the ditch, rights of way, or easements of the present Foothill Ditch from its point of diversion on the Kaweah River to its lower terminus. Neither has the Commission by inference or otherwise made any finding or ruling as to the title or ownership of any of the waters diverted by the Foothill Ditch Company and transported through its canal system. * * *

“There is no dispute in these proceedings as to the right of the Wallace Ranch Water Company to use the three second feet of water from the Kaweah River at certain stages of said river, nor as to its right to have said water conveyed by and through the Foothill Ditch. * * * Whatever arrangements may become necessary in the future to effect a settlement between the applicant and the petitioners herein because of the latters' purported ownership of a portion of the Foothill Ditch is strictly a private matter and one subject to agreement between the contending parties or settlement in the proper courts of record in the event of a failure to amicably adjust their differences.”

Receipts from the year 1914 to the year 1931 for taxes paid by defendant are in the record. In all of these receipts the following description is used: “Pogue, Wallace & Crocker Ditch which commences in Kaweah River 17 miles of ditch 1 mile of flume 6 miles fence.” In the later receipts (beginning 1922), the word “Co.” is inserted after the word “ditch” and “no fencing” is substituted for “6 miles fence.” Also in some receipts “which commences” is omitted and in others “which com.” is used.

Under date of May 29, 1923, the attorney for defendant wrote C. A. (E.) Goodale as follows: “The officers of the Foothill Ditch Company have been informed that you are planning on pumping the water at some point near the river into the Foothill Ditch and conducting it down that ditch to your lands. Of course, you understand that you have a right to convey three cubic feet of water per second through the ditch and the officers of the company are wondering whether or not you are proposing to use the ditch in excess of that right. They will not want you to do so without first seeing Mr. Merryman and making some arrangement with him in regard thereto.”

The Watson Ditch Company filed an action against J. W. C. Pogue, the Kaweah Power & Water Company, Cora Wallace Morton, and J. H. Morton. The answer of J. W. C. Pogue contains the following concerning his change of the heading and the ditch in 1890 and the rights of Cora Wallace Morton therein: “That in the month of January 1890 certain parties, unknown to this defendant at that time, and while this defendant was absent from his land and premises, unlawfully and without the knowledge of this defendant entered upon said dam and placed therein a large quantity of giant powder and exploded the same in said dam, and thereby blew a portion of said dam out of said river, and, as this defendant is informed and believes, left a large charge of giant powder in said dam, which charge so left in said dam was not exploded. That by reason of the fact that said charge of giant powder was left in said dam unexploded this defendant and his associates on account of fear of bodily injury resulting to them from the explosion of said charge of giant powder, left in said dam as aforesaid, refrained from rebuilding said dam where the same was originally placed, but thereupon changed the head of said Pogue, Wallace and Crocker Ditch to a point on the channel of said Kaweah River about one hundred yards below where the said dam was formerly located, and thereupon cut a ditch from the channel of said river for a distance of two hundred feet * * *; that said ditch two hundred feet in length led and leads into the south or original channel of said Kaweah River, and the water so diverted into said south or original channel of said river flowed, and flows down to a point about four hundred yards from the point where said ditch entered said original or south channel of the Kaweah River; that thereupon this defendant dug and constructed a ditch leading from said lower point in said original or south channel of said Kaweah River in a southwesterly direction for a distance of about a half a mile which said last named ditch was connected with the channel of said Pogue, Wallace and Crocker Ditch at a point about three quarters of a mile below the original head of said Pogue, Wallace and Crocker Ditch as the same was enlarged by this defendant and his said associates in 1875 as aforesaid; that from the month of January, 1890, until the month of May, 1890, the head of said Pogue, Wallace and Crocker Ditch, as the same was changed in the month of January, 1890, diverted and carried away from the channel of said Kaweah River water sufficient to fill said Pogue, Wallace and Crocker Ditch without the aid of a dam at the head of said ditch; that in the month of May, 1890, this defendant peaceably, openly, notoriously and adversely under a claim of right against said plaintiff (Watson Ditch Company) and its predecessors, so to do, placed a dam in the channel of said Kaweah River at the head of said Pogue, Wallace and Crocker Ditch, which said dam was placed about one hundred yards below the first and original dam hereinbefore referred to, and also at the time last stated this defendant peaceably, openly, notoriously and adversely under a claim of right against said plaintiff and its predecessors, so to do, placed a dam in the original or south channel of said Kaweah River at the point where said new ditch was constructed and led out from said original or south channel down to the original channel of said Pogue, Wallace and Crocker Ditch, and by means of said two dams hereinbefore referred to and the ditches leading into and from said original or south channel of said river, this defendant has, ever since the month of May, 1890 to a short time immediately prior to the 20th day of September 1899 diverted and carried away from the channel of said Kaweah River a stream of water. * * * And this defendant further alleges that Cora Wallace Morton, the wife of J. H. Morton, is the successor in estate of this defendant's said associate W. H. Wallace, and as such he is the owner of an undivided third of said ditch, and for more than five years prior to the 20th day of September 1899 her predecessors, and she as their successor in estate, were in the occupation and use of said ditch as a tenant in common thereof, and by means of said dams and ditch diverted water from said Kaweah River and used said water so diverted upon a portion of the lands first hereinbefore described, continuously and uninterruptedly, and, as this defendant is informed and believes, adversely and under a claim of right against said plaintiff (Watson Ditch Company) and its predecessors, and with knowledge and acquiescence of said plaintiff and its predecessors.”

The judgment in the Watson Ditch Company case, dated March 14, 1906, was based on a stipulation and contains the following: “Now the Court being advised in the premises it is ordered, adjudged and decreed, and it is the judgment of this Court, that the said defendant, J. W. C. Pogue, is the owner of that certain water ditch described in his answer, and called Pogue's Lower Ditch, and which leads out of the channel of the Kaweah River referred to in the pleadings in this case at a point on the Southeast Quarter of Section Twenty-six in Township Seventeen South, Range Twenty-seven East, of the Mount Diablo Base and Meridian, distant about one hundred yards below the head of what is referred to in said defendant Pogue's Answer as the original head of the Pogue, Wallace and Crocker Ditch; * * * that said defendant J. W. C. Pogue is also the owner of an undivided two-thirds of that certain ditch described as the Pogue, Wallace and Crocker Ditch described in the pleadings in this case from the head of said ditch, where the same connects with the said Kaweah River down to and through the lands of said defendant Cora Wallace Morton, described in the answer of said defendant Cora Wallace Morton; * * * that said defendant Cora Wallace Morton is the owner of the undivided one-third of that certain ditch described in the pleadings in this case as the Pogue, Wallace and Crocker Ditch, from the head thereof where it connects with the channel of said Kaweah River, down to and through the lands of said defendant Cora Wallace Morton described in the answer of said defendant Cora Wallace Morton in this case; that said defendant, Cora Wallace Morton, has the prior and superior right, as against the said plaintiff, (Watson Ditch Company) to divert and carry away from said river at all times three cubic feet of water per second by means of the said Pogue, Wallace and Crocker Ditch or by any other ditch or means which she may provide.”

In the instant case the trial court found: “During all of said time said plaintiff and its predecessors in interest had and now has the sole and exclusive right to divert its said three cubic feet of water per second, from said river into the head of said ditch now known as the Foothill Ditch and to convey said three cubic feet of water per second down through said ditch to the lands of the stockholders of plaintiff herein; and that plaintiff has been the owner, in possession, and at all times herein mentioned entitled to the possession of a perpetual easement and water right in and to said Foothill Ditch, formerly known as the Pogue, Wallace and Crocker Ditch, from the head thereof at a point in Section Twenty-six (26), Township Seventeen (17) South, Range Twenty-seven (27) East, M. D. B. & M., down to and near the Southwest corner of the Southeast quarter of Section Nine (9), Township Eighteen (18) South, Range Twenty-seven (27) East, M. D. B. & M., being a distance of about four miles from the head of said ditch, and the right to divert and flow through said Foothill Ditch the said three (3) cubic feet of water per second, and that said easement and water right is now and was at all times herein mentioned appurtenant to the lands of the stockholders of plaintiff herein, and their predecessors in interest; and that the said plaintiff has the right to divert said three (3) cubic feet of water per second from said Kaweah River, by means of said Foothill Ditch, also known as Pogue, Wallace & Crocker Ditch, or any other ditch, or at any other point on said river, or by any other means it may provide; * * * that under and by virtue of the said decree (of November 2, 1883) the said Emeline Wallace, Cora Wallace and William Henry Wallace were allotted and were given, as owners of the real property so allotted to them, a perpetual easement and right of way on and across the lands allotted to J. W. C. Pogue, which said easement and right of way entitled the said Emeline Wallace, Cora A. Wallace and William Henry Wallace to flow, transport and convey over and across the said lands of J. W. C. Pogue and in and through a certain ditch one-third of all the water appurtenant to the said ditch; that the one-third of all the water appurtenant to the said ditch referred to in the said decree was the three (3) cubic feet of water per second continuously belonging to plaintiff as hereinabove described in these findings; that the said ditch referred to in the said decree is the one wherein and whereby defendant's six (6) cubic feet of water per second and plaintiff's three (3) cubic feet of water per second was transported at the time of the said decree and has at all times since said decree been transported and diverted from the said Kaweah River and, except for certain modifications in the course and point of diversion of the said ditch, and is the ditch through which defendant's six (6) cubic feet of water per second is now being transported and conveyed and the ditch through which plaintiff's three (3) cubic feet of water per second is now transported and diverted from the Kaweah River to the lands irrigated by plaintiff's three (3) cubic feet of water per second; that both plaintiff and defendant and their respective predecessors in interest have at all times since the said decree in 1883 used the same ditch in common for the diversion of their respective waters from the said Kaweah River and for the transportation of their said waters. * * * The said ditch does now and has at all times since its construction prior to said decree of 1883 followed a course from this point of diversion from the said Kaweah River in a southwesterly direction through the lands described in the said decree of partition and other lands; that the said ditch has been known and designated by various names, among others as ‘Pogue, Wallace and Crocker Ditch’, ‘Pogue's Lower Ditch’, and ‘Wallace Ranch Water Company's Ditch’, and is now known as and will be referred to herein as, the ‘Foothill Ditch’; that, although the respective predecessors in interest of plaintiff and defendant have changed the point of diversion of the said ditch in the Kaweah River from time to time, the said point of diversion has always been at substantially the same point, and, upon any change in the point of diversion of the said ditch or in the course which the said ditch has taken or followed through the lands hereinabove described and referred to, both plaintiff's predecessors and defendant's predecessors have used the same ditch as so changed in course and in point of diversion from time to time, and plaintiff and plaintiff's predecessors have each and all used the said ditch and have claimed the right to use the said ditch and to divert the said three (3) cubic feet of water from the Kaweah River through the said ditch and to transport said three (3) cubic feet of water through the said ditch to the lands supplied and irrigated by the said three (3) cubic feet of water as aforesaid. * * * That in the year 1906 a proceeding was instituted in the Superior Court of Tulare County by Watson Ditch Company, a corporation, as plaintiff and against certain defendants, including J. W. C. Pogue and Cora Wallace Morton and her husband, J. H. Morton; that the said action involved the rights of the above-named parties to divert water from the Kaweah River; that in the said action a stipulation was entered into and signed by the parties hereinabove named, among others, and a judgment was entered pursuant to the said stipulation; that a true and correct copy of the said stipulation is attached to the complaint in this action, marked ‘Exhibit B’, and made a part hereof as fully and to the same effect as though the same were herein set out in full, and that a true and correct copy of the said judgment is attached to the complaint in this action, marked ‘Exhibit C’, and made a part hereof as fully and to the same effect as though the same were herein set out in full.”

It will thus be observed that the trial court particularly found that the new ditch constructed by Pogue and his successors in interest was but a change and relocation of the original Pogue, Wallace and Crocker ditch and that all of the rights the plaintiff had in the old ditch existed in the new. By incorporating into the findings in the instant case, the judgment in the Watson Ditch Company case and the stipulation on which it was based, the trial court also found that the new ditch, or so much of it as had been constructed in 1906, was exclusive property of Pogue; that plaintiff's predecessors in interest had a one-third interest and Pogue a two-thirds interest in the old ditch; and that there were two separate ditches and that plaintiff had no interest in the new ditch as constructed in 1906. We have the following conflicts in the findings between the facts particularly found by the trial court and those incorporated in the findings by including therein the stipulation and judgment in the Watson Ditch Company case:

Thus we have an apparent vital conflict in the findings. If there were two separate and distinct ditches in 1906, there is nothing in the evidence to justify the conclusion that this condition had been changed in 1931. If Pogue's ownership of the portion of the new ditch constructed in 1890 was sole and free from any easement in 1906, there is nothing to support the conclusion of the ownership by his successors of a different estate at the time of the trial. If Mr. and Mrs. Morton only owned a one-third interest in the old ditch, and no interest in the new ditch, in 1906, there is nothing to justify the conclusion that their estate or interest, or that of their successors, had changed after that date or that their successors had acquired an interest in the new ditch at the time of trial.

We should observe that from the record before us there is nothing to compel the conclusion that J. W. C. Pogue and Mr. and Mrs. Morton were adversaries in the Watson Ditch Company case or that the judgment in that case was rendered in an adversary action in so far as these defendants were concerned. Hardy v. Rosenthal (Cal. App.) 38 P.(2d) 412. However, the incorporation of the stipulation and judgment in the Watson Ditch Company case into the findings of fact in the instant case had the effect of making the recitals of the stipulation and judgment findings of fact here. DeCou v. Howell, 190 Cal. 741, 214 P. 444; Kennedy & Shaw Lumber Co. v. S. S. Construction Co., 123 Cal. 584, 56 P. 457; Homeseekers' Loan Ass'n v. Gleeson, 133 Cal. 312, 65 P. 617.

It is the well-settled law in California that where two findings on an essential fact at issue are conflicting and opposed to each other, the findings cannot support the judgment and it must be reversed on appeal. Moody v. Newmark & Edwards, 121 Cal. 446, 53 P. 944; Reese v. Corcoran, 52 Cal. 495; Manly v. Howlett, 55 Cal. 94; Rand v. Columbian Realty Co., 13 Cal. App. 444, 110 P. 322; Fanta v. Maddex, 80 Cal. App. 513, 252 P. 630.

The second ground for reversal is directed at that portion of the judgment which requires the defendant to flow plaintiff's water through the ditch at a charge for maintenance rather than at the rates imposed by formal order of the Railroad Commission. It is the theory of plaintiff, and the one adopted by the trial court, that as plaintiff owned its own water and was flowing this water through its own right of way and as it was not a public utility, the commission had no jurisdiction to make the questioned order which could be attacked in any court.

Section 67 of the Public Utilities Act (St. 1915, pp. 115, 161) provides as follows: “No court of this state (except the supreme court to the extent herein specified) shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties. * * *”

It was held in the case of Pacific Tel. & Teleg. Co. v. Eshleman, 166 Cal. 640, 137 P. 1119, 50 L. R. A. (N. S.) 652, Ann. Cas. 1915C, 822, that no court other than the Supreme Court has any jurisdiction to review, reverse, or annul any order of the Railroad Commission. See, also, People v. Hadley, 66 Cal. App. 370, 226 P. 836. In Allen v. Railroad Commission, 179 Cal. 68, 175 P. 466, 8 A. L. R. 249, it was held that the Supreme Court had jurisdiction to annul an order of the Railroad Commission which was beyond the jurisdiction of that body to render because the corporation involved was not a public utility. We are of the opinion that the Superior Court has no jurisdiction to indirectly annul an order of the Railroad Commission even though it be assumed that the order in question was beyond the jurisdiction of that body to render.

In considering defendant's third assignment of error we find that it is admitted in the pleadings and established by uncontradicted evidence that the right of the plaintiff to divert 3 cubic second feet of water from the Kaweah river is an equal and not a superior right to that of the defendant to divert 6 cubic second feet of water from that river. The two rights find their source in the right of Pogue, Wallace and Crocker as tenants in common to divert 9 cubic second feet of water. The tenancy in common was broken by the decree of partition in 1883 and the water rights divided, but neither party was given, nor has it since acquired a superior right over the other to divert its water from the river.

The judgment in the instant case recognizes the right of the plaintiff to divert 3 cubic second feet of water from the river. It also enjoins the defendant from in any wise interfering with this right. This has the effect of making the right of plaintiff superior to that of defendant in years when there are not 9 cubic second feet of water in the Kaweah river subject to their diversion. The importance of this question is shown by the evidence, where it appears that between 1923 and 1931 there were at least two and perhaps three years during which there was not sufficient water in the Kaweah river to enable plaintiff to obtain the 3, and defendant the 6 cubic second feet of water to which each was entitled. The judgment in this case should not give either party a prior or superior right over the other. It should provide that during years where there is a shortage of water to such an extent that each party cannot obtain its full supply, the deficiency be borne proportionately between them.

Judgment reversed.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.