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Show REMEDIES FOR INFRINGEMENT 251 American Jurisprudence, Second Edition, Administrative Law, section 626, states: Where, as distinguished from the performance of ministerial acts, discharge of the duties of an administrative agency calls for the exercise of discretion or judgment, mandamus is not an instrument for correcting or reviewing the exercise of such discretion unless it is shown that the action was arbitrary or capricious or prompted by wrong motives; or, as sometimes stated, mandamus does not lie to control discretion of an administrative agency in the absence of caprice, passion, partiality, fraud, some ulterior motive, arbitrary conduct, or misapprehension of law. Mandamus is not an appropriate process to obtain a review of an order entered by an agency acting within its jurisdiction, and the remedy by mandamus requires a plain duty and a clear legal right. Burden of Proof Following are some western court decisions regarding questions of the burden of proof. Appropriators Various considerations regarding the burden of proof as between appropria- tors have been discussed in chapter 8 under "Relative Rights of Senior and Junior Appropriators-Reciprocal Rights and Obligations of Appropriators- Burden of Proof."277 Some additonal considerations are brought out in the following discussion. (1) The California Supreme Court has indicated that one who claims to be a prior appropriator, and who brings suit to quiet title to the water right so claimed and to enjoin interference with its exercise, has the burden of proving every element of such right. The burden is upon him "to establish by sufficient evidence the fact of appropriation by him, and the quantity of water appropriated and applied by him to beneficial use upon his land."278 After he has proved the extent of his right, the burden of proof then falls on a subsequent appropriator-who seeks to appropriate any surplus in the water supply-to prove the existence of a surplus.279 "It must constantly be kept in mind that in an action such as this, just as in any other quiet title suit, the 277 See also, in chapter 9, under "Natural Channels and Reservoirs-Use of Natural Channel" the subtopics "Commingling-Burden of proof and "Exchange or Substitu- tion of Water-Burden of proof." Also see the related discussions of burden of proof in chapter 14 under the topics "Abandonment and Statutory Forfeiture" and "Prescrip- tion." ™Cranev. Stevinson,5 Cal. (2d) 387, 398, 54 Pac. (2d) 1100 (1936). ™Lodi v. East Bay Municipal Util. Dist., 7 Cal. (2d) 316, 339, 60 Pac. (2d) 439 (1936); Peabody v. Vallejo, 2 Cal. (2d) 351, 381, 40 Pac. (2d)486 (l935);Millerv.Bay Cities |
