Miller & Lux, Inc. v. Bank of America

• Decision Date: 06 February 1963
• Citation: 28 Cal.Rptr. 401,212 Cal.App.2d 719
• Court: California Court of Appeals Court of Appeals
• Parties: MILLER & LUX, INC., Plaintiff and Appellant, v. BANK OF AMERICA, etc., Buena Vista Water Storage District, etc., et al., Defendants and Respondents. Civ. 3.

Page 401

28 Cal.Rptr. 401

212 Cal.App.2d 719

MILLER & LUX, INC., Plaintiff and Appellant, v. BANK OF AMERICA, etc., Buena Vista Water Storage District, etc., et al., Defendants and Respondents.

Civ. 3.

District Court of Appeal, Fifth District, California.

Feb. 6, 1963.

Vincent J. McGovern, San Francisco, for appellant.

Gordon A. Drescher, Wasco, filed an opening brief on behalf of the original plaintiffs and appellants (Mr. and Mrs. Burhans); thereafter Miller & Lux, Inc. was substituted as plaintiff and appellant, with Vincent J. McGovern, San Francisco, as sole counsel.

J. E. Woolley, San Francisco, for Buena Vista Water Storage Dist.

Hill, Farrer & Burrill, Ronald L. Hartman, John J. Wilson, Los Angeles, for Bank of America.

BROWN, Justice.

This appeal originated in an action brought by Robert Burhans, Jr. and Gertrude B. Burhans, husband and wife, against Harry R. Wiley and Buena Vista Water Storage District. During the pendency of appeal, Miller & Lux, Incorporated, has been substituted in the place of plaintiffs, and Bank of America National Trust and Savings Association, as administrator, has been substituted in the place of defendant Wiley, now deceased. In the interest of clarity, we shall refer to the appellant as plaintiff, in the singular, or as Burhans, and to the respondents as defendants, or as Wiley and District. Defendant Wiley opposes the appeal. Defendant District has not filed a brief. District's counsel stated during oral argument that District offers no opposition to this appeal because of the belief that the judgment appealed from is erroneous.

The controversy here involved relates to conflicting claims to water and water rights. District owns and services lands immediately southerly of Highway 466, known as the Wasco Road, in Kern County. Wiley owns in fee and leases lands immediately northerly of Wasco Road. Burhans owns in fee and leases lands situate immediately northerly of Wiley's lands. Waters flow from the Kern River, at a diversion point situated on District's lands, into and through Goose Lake Canal and Kern River Flood Channel, hereinafter referred to as the channel, in a general northerly direction. Thus, the waters flow over or past the lands of District, then the lands of Wiley, then the lands of Burhans, in that order.

The second amended complaint, hereinafter referred to as the complaint, seeks a decree quieting title in Burhans to water and water rights in Goose Lake Canal and the channel for beneficial use upon lands owned in fee and lands in which Burhans holds leasehold interests, and for injunctive relief.

Defendants answered the complaint and general and special demurrers were filed. Hearing on the demurrers was deferred and no ruling thereon has been made.

Defendants also moved for a summary judgment which was granted. The court below made its Order for Summary Judgment which in form and substance is akin to a memorandum opinion, embodying the reasoning of the court on which the judgment rests, and which expressly directed the preparation of a formal judgment. A formal summary judgment was then entered, quieting title in defendants to all waters and water rights in Goose Lake Canal and the channel 'excepting for such flood, vagrant, hostile and enemy waters from Kern River as may occasionally flow in infrequent years when such flood, vagrant, hostile and enemy waters from Kern River find their way into said Kern River Flood Channel northerly of the southerly boundary of plaintiffs' lands.' Plaintiff appeals from the order and from the judgment. The order is nonappealable and the attempted appeal therefrom must be dismissed.

On appeal from the summary judgment plaintiff challenges the sufficiency of the moving affidavits and contends that the counteraffidavits establish that triable issues exist.

The basic principles controlling judicial action in granting or denying a summary judgment have been set out in an avalanche of decisions and need not be restated here. (See Snider v. Snider, 200 Cal.App.2d 741, 19 Cal.Rptr. 709, for a recent comprehensive summation of rules and case authorities.)

Preliminarily, the pleadings contained in the record before us are numerous and lengthy. We have carefully read the equally numerous and lengthy supportive and opposing affidavits. It does not seem to be within the realm of probability that either pleadings or affidavits of the character and complexity of those contained in this record will be filed in another action. Therefore, a detailed summary thereof would serve no useful purpose as a guide in future litigation. We shall advert hereinafter only to such allegations and averments as are necessary to this opinion.

Freed from the confusion engendered by the divergent theories and the superabundance of arguments contained in the voluminous record and the briefs, the plaintiff's position is simply this: He claims to be the owner of water and water rights in Goose Lake Canal and the channed by virtue of the riparian status of his lands, by appropriation and by prescription. Defendants, on the other hands, contend that plaintiff's lands were stripped of all water rights by reservations and exceptions in deeds in the chain of title; that the issue of appropriative rights was not properly pleaded and thus was not before the court, and that, as a downstream user, plaintiff did not and in law could not acquire any water rights by prescription as against defendants.

We have concluded that plaintiff's counteraffidavits tender at least one triable issue with respect to his claim of acquisition of water rights by appropriation and that one material triable issue requires reversal of the judgment. Insofar as is possible, we shall abstain from discussing other questions raised by this appeal and which will be involved in the ultimate determination after trial on the merits.

However, the following general comments seem pertinent. Bound by the rule that the moving affidavits must be strictly construed (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 122 P.2d 264; Walsh v. Walsh, 18 Cal.2d 439, 116 P.2d 62) we have disregarded a substantial and material portion of defendants' supportive affidavits. The general rule is that allegations made on information and belief are valueless. 'Such belief, without more, is not competent testimony but a mere opinion or conclusion.' (Maltby v. Shook, 131 Cal.App.2d 349, 353, 280 P.2d 541, 544.) An exception is created by section 437c of the Code of Civil Procedure, which governs summary judgment procedure. It is there provided that when the party resisting the motion appears in one of the specified representative capacities, his own opposing affidavit may be made on information and belief. There is no correlative statutory provision in favor of the movant.

The rule is now well established that averments in the movant's affidavits which depend upon written documents are incompetent and cannot be considered unless there are annexed thereto the original documents or certified or authenticated copies of such instruments, or excuse for nonproduction thereof is shown (Low v. Woodward Oil Co., Ltd., 133 Cal.App.2d 116, 121, 283 P.2d 720; Rodes v. Shannon, 194 Cal.App.2d 743, 749, 15 Cal.Rptr. 349; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 349, 333 P.2d 142, 146; Callahan v. Chatsworth Park, Inc., 204 A.C.A. 649, 657, 22 Cal.Rptr. 606. 'It is the rule in California that there can be no waiver in summary judgment proceedings of the right to object to matter inadmissible by virtue of its incompetency.' (Family Service Agency of Santa Barbara v. Ames, supra, 166 Cal.App.2d p. 351, 333 P.2d p. 146.) (See also Rodes v. Shannon, supra, 194 Cal.App.2d 743, 749, 15 Cal.Rptr. 349; Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 365, 333 P.2d 133.) And in Callahan v. Chatsworth Park, Inc., supra, 204 A.C.A. at page 656, 22 Cal.Rptr. at page 611, it is said:

'In order to succeed the moving party must present a competent showing regardless of weakness in the opposing affidavits and this is a matter which cannot be waived.'

Within these rules must fall all moving affidavits, or portions thereof, which relate to and give the contents of, or the affiant's conclusion as to the legal effect of, written instruments designed to show that plaintiff's lands were stripped of all water rights by reservations in numerous deeds; ownership in defendant District of Goose Lake Canal and the right of way in which it lies; ownership in Miller & Lux, Incorporated, of water rights at the diversion point on the Kern River by virtue of the Miller-Haggin agreement and the subsequent conveyance of those rights to District by agreement; the annual acre feet of water flowing in the two watercourses from 1937 through 1954 as is alleged to be shown by defendant District's records; agreements between Wiley and District and between Wiley and Burhans relating to the use of water. In brief, legal infirmity pervades virtually every one of the several affidavits filed in support of the motion.

We turn to the issue of appropriative rights. Plaintiff contends that the trial court erred in failing to consider the issue of his claimed appropriative rights. In its order for summary judgment the court passed lightly over this issue with the terse comment. 'Their [plaintiff's] rights acquired by appropriation, if any, have never been determined; the applications are still pending.' From this statement it is evident that the trial court held the erroneous belief that the filing of an application to appropriate unappropriated water did not give rise to a right in the claimant sufficient to fall within the protection of the law. The statutory and decisional law of California is to the contrary. Section 1450 of the Water Code, relating to appropriative rights, provides:

'Any application properly made gives to the applicant a priority of right as of the date of the application until such application is approved or...