Glenbrook Development Co. v. City of Brea

• Decision Date: 07 August 1967
• Citation: 253 Cal.App.2d 267,61 Cal.Rptr. 189
• Court: California Court of Appeals Court of Appeals
• Parties: GLENBROOK DEVELOPMENT CO., a California corporation, Plaintiff and Respondent, v. CITY OF BREA, Defendant, Cross-Defendant, Cross-Complainant and Respondent, Yorba Linda County Water District, Defendant, Cross-Complainant, Cross-Defendant and Appellant. Civ. 8246.

Page 189

61 Cal.Rptr. 189

253 Cal.App.2d 267

GLENBROOK DEVELOPMENT CO., a California corporation, Plaintiff and Respondent, v. CITY OF BREA, Defendant, Cross-Defendant, Cross-Complainant and Respondent Yorba Linda County Water District, Defendant, Cross-Complainant, Cross-Defendant and Appellant.

Civ. 8246.

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

Aug. 7, 1967.

Rehearing Denied Aug. 30, 1967.

Hearing Denied Oct. 5, 1967.

[253 Cal.App.2d 269] Rutan & Tucker, Fritz R. Stradling, and James E. Erickson, Santa Ana, for defendant, cross-complainant, cross-defendant and appellant Yorba Linda County Water Dist.

Burris & Lagerlof, H. Jess Senecal, Los Angeles and H. Rodger Howell, Santa Ana, amici curiae on behalf of defendant, cross-complainant, cross-defendant and appellant Yorba Linda County Water Dist.

Bewley, Lassleben & Whelan and Martin E. Whelan, Jr., Whittier, for defendant, cross-defendant, cross-complainant and respondent City of Brea.

No appearance for plaintiff and respondent.

OPINION

KERRIGAN, Associate Justice.

This action involves a dispute between a general law city and a county water district for the purpose of determining which entity has the right to serve domestic water to the residents of a subdivision. The subdivision is situated completely in the city limits and almost entirely within the territory of the district. The plaintiff Glenbrook Development Co., a California corporation, referred to herein as 'subdivider,' is the owner of said parcel which comprises approximately 16.5 acres of land identified as Tract 4547 in the city of Brea. At the time the action was initiated, there were 64 residential homes under construction on the subject parcel. Since 1961, the tract has been located within the city limits of the defendant-cross-defendant, cross-complainant and respondent City of Brea, which will be hereinafter designated as 'city.' The defendant, cross-complainant, cross-defendant and appellant Yorba Linda County Water District, referred to herein as 'district,' is a county water district organized and functioning pursuant to the provisions of Division 12 of the Water Code of the State of California, and since the year 1914, the land upon which 55 of the 64 homes are located has been within the boundaries of the district and serviced with water by the district or its predecessor-in-interest.

The district has outstanding a general obligation bonded indebtedness incurred for the purpose of providing the tracts within the district with water service, which constitutes a lien upon the land within the district, so that the subdivider and its successors-in-interest, to wit, the home purchasers, will remain liable for the payment of taxes so as to provide reimbursement and satisfaction of the bonded indebtedness, regardless of whether the district provides water to the tract involved. Although the city owns and operates a municipal water system, the Board of Directors of the district has never given permission to the city to provide water service to the tract. The total number of registered voters residing within the tract is less than 200 families, and the voters of the district have never voted to permit service by the city.

On April 20, 1964, the city approved a final tract map for Tract 4547, subject to the following conditions: (a) that the subdivider construct and dedicate the water system within the tract to the city; (b) that the water system within the tract must be connected to the city water system; (c) that the subdivider take water service from the city.

These conditions were imposed pursuant to the city's subdivision ordinance (Brea Mun.Code, § 21.74), which states, in essence, that the domestic water supply of a subdivision within the city shall be obtained from the city water department.

The subdivider advised the city at all stages of the proceedings involving the processing of the tract map to the effect that the aforesaid conditions imposed by the city could be in derogation of the district's rights to provide service to the 55 residences which were located in the district's territorial jurisdiction. Nevertheless, the city insisted upon imposition of the stated conditions and the subdivider, caught in the cross-fire between the city and the district, filed an action for declaratory relief for the purpose of determining which entity was to serve the tract, or any portion thereof, and sought an adjudication as to the validity of the conditions imposed by the city. The district and the city then filed cross-complaints in the form of declaratory relief, each contending that it had the exclusive right to serve the subject tract.

The city, pursuant to stipulation of the parties, and without prejudice to any rights that either the city or district might enjoy, was authorized to serve domestic water to the tract pending a final disposition of the cause so that the subdivider would be in a position to complete the tract and assure potential buyers of an adequate supply of water pending this suit.

The trial court held that the city was not precluded from providing water service in district territory and that the ordinance requiring that the subdivider be furnished water only by the city was valid under the terms of the Subdivision Map Act, and entered judgment accordingly.

The issues to be determined on appeal may be defined as follows: (1) May a general law city provide water in the territory of a county water district under section 31053 of the Water Code where the district has incurred a general obligation bonded indebtedness for the purpose of providing such land with water service? (2) Is California Water Code, section 31053 unconstitutional as being violative of article XI, section 19 of the California Constitution? (3) In the event that Water Code, section 31053 does not apply to a general law city, does such a city have the power to impose a restriction to the effect that a subdivider obtain water only from the city under the Subdivision Map Act?

The trial court held that section 31053 of the California Water Code is not applicable to a general law city on the basis that a water system owned and operated by a general law city is not a 'publicly owned utility' as that term is utilized in section 31053 of the Water Code.

Section 31053 of the Water Code of the State of California, which was enacted in the year 1959, provides as follows:

'No Publicly owned utility shall commence to provide any service for, on, or to any land within a county water district which is Subject to the lien of a general obligation bonded indebtedness incurred by the district for the purpose of providing a service similar to that which the utility proposes to provide.

'However, a publicly owned utility may commence to provide service, otherwise prohibited, upon either of the following conditions:

'(a) If the board of directors of such a county water district shall by resolution permit such service; or

'(b) In any portion of such a county water district proposed to be served by the publicly owned utility in which the total number of registered voters residing therein exceeds 200, and in which at least two-thirds of the voters shall have voted at a special county water district election to permit such service. The election shall be called and held as an initiative measure pursuant to Section 30830.' (Emphasis added.)

The parties correctly concede that a city water department is a 'utility.' A utility is an agency engaged in the business of supplying light, water, power, heat, transportation or means of communication; a 'public utility' is a business or service which is engaged in regularly supplying the public with some commodity or service of public consequence, such as electricity, gas, water, transportation, telephone or telegraph service. (Gulf States Utilities Co. v. State (1932) 46 S.W.2d 1018, 1021 (Tex.Civ.App.); see also Del Mar Water, etc., Co. v. Eshleman, 167 Cal. 666, 672, 140 P. 591, 948) The interpretative question to be resolved is whether the utility is 'publicly owned' under the provisions of section 31053 of the Water Code.

The general or popular meaning of the word 'public' is: '* * * of or relating to business or community interests as opposed to private affairs,' and the governmental meaning of the term is: '* * * in the service of the community or nation.' (Webster's Third New International Dictionary.) A city water department has been judicially defined as a 'public water system.' (See Hughes v. City of Lincoln, 232 Cal.App.2d 741, 746, 43 Cal.Rptr. 306.) While there are no apparent case authorities precisely defining the phrase 'publicly owned utility,' the plain import of the term would indicate that it embraces governmental ownership. Publicly owned utilities are those owned by public corporations such as municipal public utility districts and public utility districts. (See 41 Cal.Jur.2d, Public Utilities, § 1, p. 248.)

Our interpretation of the word 'public' finds support under both case and statutory law. 'Public property' has been characterized as all of the property of a city and county, including pipe lines and storm drains. (Bauer v. County of Ventura, 45 Cal.2d 276, 287, 289 P.2d 1; Selby v. County of Sacramento, 139 Cal.App.2d 94, 99, 294 P.2d 508.) Recent legislative enactments support the proposition that a city was intended to be included within the definition of a 'publicly owned utility' and that its water system is, in fact, a utility which is 'publicly owned.' (See Gov.Code, § 811.2.) In section 811.2 of the Government Code, a 'public entity,' is defined as including a city. Section 830 of the Government Code treats 'property of a public entity' and 'public property' as synonymous and defines them to mean property owned or controlled by the public entity. The legislative conception of what constitutes a 'public utility' has been formulated in descriptive, rather than definitive terms. 'Public utility includes every common...