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HomeMy WebLinkAboutMinutes - North Fork Water Company - 12/10/1975 (Big Bear Municipal Water vs. North Fork Water)December 10th, 1975 Board of Directors NORTH FORK WATER COMPANY 1155 Del Rosa Avenue San Bernardino, CA. 92404 Re: Big Bear Municipal Water District vs. North Fork Water Company, et al. Gentlemen: As you will recall from my last report to you in this action, the Demurrers that we interposed to Plaintiff's first Complaint were sustained with leave to amend. Subsequent to that action by the Court, Big Bear Municipal Water District filed an Amended Complaint wherein by different language they attempted to establish their right to store water behind Big Bear Dam. We again filed Demurrers to the Complaint, which were argued before the Court on October 30, 1975, and we have just received the Opinion of Judge Campbell sustain- ing our Demurrers without leave to amend, and further indicating that the District cannot proceed in the con- demnation case against Bear Valley Mutual. We are enclosing herewith a copy of Judge Camp- bell's Opinion without the Appendix in which the Judge agreed with our contentions that the District did not have standings to commence an action to perfect water rights that it did not have, or to secure an injunction for the use of Bear Valley Mutual's Dam and Reservoir for storage of water for recreational purposes. In view of the fact that the Court has agreed with our arguments and authorities, we naturally feel that it is a well reasoned Opinion. A Demurrer to a complaint is a pleading which is filed which in effect says, "assuming what the Plaintiff says in his complaint is true, he still has not alleged facts upon which he is entitled to judicial relief." ere a Demurrer is sustained with leave to amend as was the first Demurrer, then the Plaintiff can come back into Court and attempt to allege different facts that would entitle him to relief. In the present case, the Demurrer Board of Directors NORTH FORK WATER COMPANY December 10, 1975 page -2- was sustained without leave to amend, which means that the Plaintiff is now out of Court and has only remaining, the remedy of appeal to the appellate courts. In view of the past history of both the condemnation case and this case, we can assume that Plaintiff will appeal. While technically the Demurrers filed in this case have no bearing on the condemnation case, I am certain that in view of Judge Campbell's decision wherein he indicates that the District does not have the power to condemn a reservoir purely for recreational purposes, that Bear Valley will make a motion for summary judgment in the condemnation case, which as this Opinion indicates, would be granted. One thing that particularly pleased me with the Judge's decision was his adoption of our argument that while Big Bear Municipal Water District has the technical right to bring an action to adjudicate the waters of the Basin, that the District really has no interest in such an adjudication, but was trying to use this technical right to secure its primary end that is, the use of the Dam and Reservoir for the storage of recreational water. As we argued, and as the Judge found, this they do not have the right to do. During the 1975-76 regular session of the Legislature, Big Bear Municipal Water District secured the addition to 71661 of the Water Code which provides that that District only may construct, maintain, improve and operate public recreational facilities which are not appurtenant to a water reservoir operated by the District, when such proposal is approved by a majority 'of the qualified voters of the District. It may be that after the adoption of this Section, that the District may dismiss its existing condemnation case and not pursue the pending case on appeal against North Fork and others, but will commence a new condemnation action against the Dam and Reservoir. We will keep you informed as to further developments in this case. In the meantime, we have filed on behalf of North Fork, a Protest to Big Bear Municipal Water District's Application to Appropriate Water in Big Bear Lake, and also have filed a Protest on behalf of East San Bernardino County Water District. A copy of the North Fork Protest is enclosed herewith. In view of the Judge's decision that the District does not have the power of condemnation, I don't know whether the District will proceed with the Application. If it does, we will continue to represent North Fork in resistence to the Application. Yours very truly, DG:j ~ Encls.