GLENN & WRIGHT 1434 Fifth'Avenue San Diego, California 92101 239-3571 4 Attorneys for Defendant, Palomar Mutual Water Company 6 7 a SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN DIEGO 10 PETER MICHAEL STRUB, NO. 1 62 6 5 0 et al, 11. Plaintiffs, ORDER PRESCRIBING NOTICE TO BE 12 vs. GIVEN OF THE Fiurp AND HEARING UPON THE APPLICATION OFDEFENDANT 13 PALOMAR MUTUAL WATER PALOMAR MUTUAL WATER COMPANY COMPANY, et al, FOR AN ORDER MODIFYING JUDGMENT 19: Defendants. 16 16 Upon reading and filing the application of defendant, PALOMAR 17 MUTUAL WATER COMPANY, for an order modifying the judgment of 18 November 10, 1953, herein, the Declaration of Leroy A. Wright, attorney for 9 defendant, PALOMAR MUTUAL WATER COMPANY and good cause appearing, 20 IT IS ORDERED that notice of the filing and the hearing upon the 21 application of PALOMAR MUTUAL WATER COMPANY, above referred to, be 22 given to Pauma Municipal Water District as agent for certain of the original 2 plaintiffs herein, Messrs. Clayson, Stark, Rothrock & Mann, attorneys for 24. Patna Municipal Water District and to the persons, firms and corporations 25 listed in the Exhibit A attached hereto who appear , to be the many plaintiffs 26 or the present owners of lands formerly belonging to the original plaintiffs. 27 IT IS, FURTHER, ORDERED, that such notice be given by depositing 28 a copy of the application of defendant, PALOMAR MUTUAL WATER COMPANY, 29 together with the notice in the United States mail at least fifteen days before 30 the date fixed for hearing upon said application. 31 DATED: August 6, OM 32 VERNE 0, WARNER Judge of the Superior Court Exhibit C, Page 46 under the agreement referred to in Paragraph I above (Paragraph VDa, Page 2 5, lines 22-30): 3 "That Defendant, PALOMAR MUTUAL WATER COW:l'ANY, 4 by virtue of the foregoing, has water rights or the right to • ' develop, produce, divert and control the water rights and water owned by the respective owners of said Rincon Ranch and to 7 distribute and deliver said waters to said landowners for all 8 beneficial and useful purposes on their respective lands, 9 subject to the limitations imposed by law and by those herein- 10 after set forth which are imposed for the purpose of limiting 11 defendants' use of said waters as against the Plaintiffs in 12 this action, which limitations shall inure solely to the benefit 13 of Plaintiffs 'and their respective heirs, successors and 14 assigns." 15 III 16 'Paragraph IX of said judgment (Page 15, line 32, .et seq.) provided 17 generally that all waters which the Company might develop or derive from 18 sources upon or underlying Rincon Ranch or from sources lying upstream 19 on the San Luis Rey River from the County Highway generally known as Cole 20 Grade Road "shall be used by defendants (Company) or persona claiming under 21 or through them on (no more than nine hundred (900) acres of said 22 Rincon Ranch". Further by said Paragraph, Company was directed to amend 23 It s By-laws so as to provide that its outstanding shares should be made 24 appurtenant to particular tracts or parcels of land within said Rincon Ranch 2 "the area of which shall not exceed, in the aggregate, nine hundred (900) 26 acres". Company was further enjoined not to issue any additional shares of 27 Its stock or change its stock structure or By-laws in any manner which would 28 authorize the use of water derived from the sources referred to on more than 29 900 acres of said R incon Ranch or the use thereof on any lands other than 30 Rincon Ranch unless such changes should have firat been approved by order o 31 this Court made on notice to plaintiffs or the owners of record of plaintiffs' 32 lands, said Paragraph rx further provided (Page 17, lines 18-30): Exhibit C, Page 47 a. said Rincon Ranch for usethereori. All water obtained, by said Defendants from said sources shall be taken only in 3 conformity with the previsions of this judgment." (Page 19, 4 line 27, et seq.) 5 6 By Paragraph XIV of said judgment of November 10, 1953, the Court 7 reserved and retained jurisdiction to enforce or modify said judgment upon the filing of a petition and an order of the Court to fix and prescribe the 9 notice to be given, the manner of service and the time of hearing thereon. 10 VI 11 Following the entry of the judgment of November 10, 1953, YUIN1A 12 MUNICIPAL WATER DISTRICT, a municipal water district formed under the . 13 Municipal Water District Law of 1911 (here referred to as "Yuima") was 14 formed February 25, 1963. Its territory was then annexed to San Diego 15 County Water Authority and The Metropolitan Water District of Southern 16 California. Company, on February 28, 1961, filed herein,its application for 17 a modification of the judgment so as to permit it to issue additional shares of 18 stock for the purpose of enabling Company to deliver water which Company 19 might be able to obtain from Yuima from other than local sources. The 20 application of Company was granted by order of this Court dated June 4, 21 1964, and the allegations contained in Company's application and the terms of 22 the order of this Court modifying the judgment are referred to and incorporated 23 herein by such reference. 24 VII 211 By proceedings had in conformity with the Municipal Water District 26 Law of 1911, .Yuima, on November 13, 1967, formed a Special improvement 7 district known as IMPROVEMENT DISTRICT "A" OF YUI MUNICIPAL 8 WATER DISTRICT. (Such special Improvement District is herein referred to 29 as "ID "A" ". ), The territory included with ID "A" comprises the same 30 territory as is described in the agreement (referred to in Paragraph I of this 31 application) between Company and Rossmoyne Village, Inc., and constitutes the 32 service area of Company. The purpose for which ID "A" was formed is set Exhibit C, Page 48 1 "Sk'ction 7. Future Water Service. 2 "a. Water Service and Rules and Regulations, Yuirna 3 agrees for the express benefit of the lands ,comprising its 4 Improvement District A to continue to render water service to 5 all properties within said Improvement District and to perform 6 fully the obligations of Palomar under the agreement of 7 'February 11, 1948, between Rosernoyne Village, Inc. and 8 palomar, in conformity with the provisions of the judgment in 9 Strub v, Palomar Mutual Water Company as the same may be 10 modified at date of closing or thereafter. Yuima, for Improve- ment District A, shall adopt such reasonable rules and 12 regulations in connection with the operation of Palcrmar's 13 system within Improvement District A as shall be necessary 14 or desirable to carry out its duties and obligations under the 15 agreement with Rossmoyne Village, Inc. and the judgment 16 above referred to." 17 "Section 8. Dedication of Assets and Properties Acquired 18 +. from Palomar, 19 * * * 20 "b. Operating Properties. All operating properties 21 which Yuima acquires under this agreement from Palomar, 22 including, but not limited to the lands known as 'watershed lands', 23 • reserVoirs, well sites, pumping stations,, pipelines and 24 appurtenances, together with the water rights of Palomar 25 and those appurtenant to Palomar's Service Area and described 26 in the agreement with Rossmoyne Village, Inc. (Exhibit 1) 27 shall be used and devoted solely to the benefit of the territory 28 comprising Improvement District A. 29 * * * 30 "d. Scope of Dedication. The dedication of the 31 ',operating properties which Yuima acquires from Palomar under 32 this agreement or which it may conatnict out of the funds of Exhibit C, Page 49 I, operation of Company's water system and its activities as agent for the 2 successors in interest of Rosarnoyne Village, Inc. would be required to make 3 3 such looal water as can be developed from the sources presently available to 4 Company under the judgment herein to all lands encompaaaed -within ID "A". • -, • 5 The limitation contained in said judgment restricting the use oi local water to 6 no more than 900 acres of Rincon Ranch is one which could not feasibly or 7 legally be observed by Yuinrui in its operation of said ID "A s. X 9 Company alleges that under present circumstances the provisions of 10 the judgment of November 10, 1953 1 imposing said 900 acre limitation unduly restricts the rights of the successors in interest to Rossmoyne Village, Inc, 12 and serves no real or useful purpose in enforcing or carrying out the general 13 purpose and intent of said judgment. The rights of plaintiffs and their 14 successors in interest in and to the waters of San Luis Rey River can and will 15 be adequately protected by the basic limitation contained in said judgment 16 whereby Company, as agent a Rosamoyne Village, Inc., is enjoined from 17 withdrawing more than 1,.350 acre feet of local water in any one calendar year. 18 Provisions restricting the use of that water on no more than 900 acres merely 9 duplicate the basic limitation as to the total amount of local water than can be '20 developed and, since imported water is now available and is being used on 21 lands within Company's service area comprising a total of more than 900 .22 acres, render the said 900 acre limitation naeaninglese, contusing and 23 ineffective.