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by injunction against the wrong-doer. In order to obtain this assistance from chancery, it is not necessary for the complainant to have recovered his damages at law. “Under our Codes,"
. say the California court, “the riparian proprietor is not required to establish his right at law by recovering a judgment in damages before applying for an injunction. The decisions (in cases of alleged nuisances) based on the failure of the complainant to have had his right established at law have no appositeness here. Here the plaintiff must, indeed, clearly make out his right in equity, and show that money damages will not give him adequate compensation. If he fail to do this, relief in equity will be denied; but, if he proves his case, relief will be granted, although he has not demanded damages at law. In the case at bar, the plaintiffs do not admit that damages would constitute compensation, and ask for an injunction until they shall recover such compensation in an action for damages. The decisions which bear on that class of cases, and which require of the plaintiff to show that he has promptly sought redress at law, have little applicability.” And indeed it is settled that an action of ejectment will not lie to recover possession of a watercourse.
Since a court of equity may grant or withhold its aid according to the circumstances, its intervention can only be secured by the presentation of a substantial case. Thus, each riparian proprietor has a right, within his own territory, to the use of the water as it flows, returning it to the channel of the stream for the use of others below; but if the water may be conveniently used by two riparian owners, without strictly enforcing such right, a court of equity may refuse to lend its aid; and accordingly it has been held that a riparian owner would not be
1 Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 688.
2 Swift v. Goodrich, 70 Cal. 103, 11 Pac. Rep. 561; Ang. WaterCourses, S 8.
enjoined from taking water from a river for the use of his mill, although it was not returned to the channel of the river before it reached the territory of an adjoining owner, where it was not clear from the evidence that such adjoining owner could not use the water, with substantially the same results, through the race of the defendant's mill.? And, further, equity has jurisdiction for taking the necessary steps to make its decrees effectual. Hence, when the court has jurisdiction to grant an injunction restraining the unlawful diversion of waters, it may also require the defendant to remove the obstructions by means of which the diversion is effected. And where, in an action to establish the right to the water in a stream, the court finds, on suilicient evidence, that the parties have each certain rights in the stream, it may secure enjoyment of those rights by proper regulation of the use of the water.3 • And the fact that a complaint prayed only for an injunction against a threatened diversion of water, and that at the time of its filing defendant had already begun to do so, will not prevent the issuance of an injunction against the continued wrong. ful diversion.
Unless the flow of a stream to the land of a riparian proprietor has been appreciably or perceptibly diminished, he is not entitled to an injunction against another for wrongfully diverting water from the stream." But at the same time, as stated in
1 Mason v. Cotton, 4 Fed. Rep. 792.
2 Johnson v. Superior Court of Tulare Co., 65 Cal. 567, 4 Pac. Rep. 576; Atcbison, T. & S. F. R. Co. v. Long. 46 Kans. 701, 27 Pac. Rep. 182. Where defendant has a right to divert the water to the full capacity of a 1} inch pipe, he is not injured by an injunction restraining bim from using a 6 inch pipe if the 1} inch pipe takes all the
water of the stream. Conkling v. Pacific Imp. Co., 87 Cal. 296, 25 Pac. Rep. 399.
3 Barrows v. Fox, (Ca).) 30 Pac. Rep. 768.
4 Conkling v. Pacific Imp. Co., 87 Cal. 296, 25 Pac. Rep. 399.
5 Moore v. Clear Lake Water Works, 68 Cal. 146, 5 Pac. Rep. 494; Creighton v. Kaweah Canal Co., 67 Cal. 221, 7 Pac. Rep. 658; Bar. rows v. Fox, (Cal.) 30 Pac. Rep. 768; Wintermute v. Tacoma Water Co., 3 Wash. St. 727, 29 Pac. Rep. 444.
a late case, a continuous wrongful diversion of water will be restrained in equity at the instance of a prior appropriator thereof, although no actual damages are averred or proved; the relief being granted in such cases to prevent the wrongful acts from ripening into a right. And though the complaint, in an action to restrain the diversion of a stream from the course in which plaintiff claims he is entitled to have it flow, as riparian owner and prior appropriator, alleges that damages te the land will result from the diversion, yet the court need not find on the issue of damages, since the plaintiff is entitled to an injunction, whether such damages result or not.? Hence, also, the complaint in an action by an appropriator of water, to restrain the unlawful diversion of the stream, need not allege that the plaintiff is in a position to use the water himself, or that he is in any position which gives him a right to furnish it to others; but it is sufficient to allege that he has a right to the use and enjoyment of the water. So the riparian owner is entitled to the aid of equity to enjoin a diversion, notwithstanding he may have made no use of the water-power himself, or sustained but small pecuniary damages, and although the defendant may be subjected to heavy expense if compelled to restore the water to its original channel. A complaint which alleges that defendants threaten to divert the water from plaintiff's water-power, that defendants claim the right and have the ability to do it, and that they will do so unless restrained, presents a case for the
1 Moore v. Clear Lake Water Works, 68 Cal. 146, 8 Pac. Rep. 816; Conkling v. Pacific Imp. Co., 87 Cal. 296, 25 Pac. Rep. 399; Spar. gur v. Heard, 90 Cal. 221, 27 Pac. Rep. 198; Franklin v. Pollard Mill
Co., 88 Ala. 318. 6 South. Rep. 685.
2 Mott v. Ewing, 90 Cal. 231, 27 Pac. Rep. 194.
3 Moore v. Clear Lake Water Works, supra.
4 Weiss v. Oregon Iron Co.. 13 Or. 496, 11 Pac. Rep. 255; citing High, Inj. $ 795.
exercise of equitable jurisdiction to prevent a threatened injury.1
In regard to the parties to actions of this character, the rule seems to be established that, where each of two defendants made a diversion of the water for his own benefit, separately from the other, and without any collusion or joint action between them, a joint action to recover damages for such diversion is not maintainable. Under the peculiar system of "irrigating ditches," prevailing in some of the states and territories, it is held that the owners of irrigated lands, who have the right to take water from such a ditch, may bring suit for an injunction against one who wrongfully diverts water from the ditch to their injury, though the ditch be the property of another. “Though the owners of the ditch are entitled to toll for the water, the owners of the land are entitled to the water on payment of the toll. The diversion of the water from the ditch would injure the owner of the ditch, it is true, but it would also injure the owner of the land to be irrigated, to deprive him of the water. The owner of the ditch, for many reasons, might decline to sue. He might be in collusion with the wrong-doer to destroy the value of plaintiff's lands, in the hope of buying them. He might be actuated by private malice. He might, from motives of economy, refuse to embark in a lawsuit of this character. The rights of plaintiff would be of little value if they were subject to the interest, whim, or caprice of the owner of the ditch."3
It is of course a good defense to an action of this character that the defendant is a riparian owner on the stream, and as such has rights superior to those of the plaintiff, whether the latter claims as an appropriator or as a lower riparian owner. But an answer which merely alleges that the defendant is the owner of land through which the stream flows for a distance of about three miles, and that most of the land is susceptible of irrigation and would be benefited thereby, is not sufficient to raise any issue as to his right to take water by virtue of his riparian ownership, in the absence of an allegation that he was entitled as riparian owner to any definite amount of water, or what portion of the stream he could exhaust for irrigating, or whether his land was located above or below the point of plaintiff's diversion. And when a party has acquired a prior right to the water of a natural stream by a valid appropriation thereof to a beneficial use, another party cannot justify an interference with such prior right by merely showing that he is wholly dependent upon the same supply of water; but in an equitable proceeding, for some purposes, even though not as a bar to such prior right, it may be proper for defendant to allege such dependence in connection with other averments of the answer; and it is not error to refuse to strike out such matter, unless it is made to appear that its retention, in some way, may have improperly affected the final decision of the cause. It is always available for the defendant to show, as ground for refusing the injunction, that the stream or water in question is not a natural water-course; 3 or that the works or operations complained of have not obstructed the natural flow of the stream; 4 or that the diversion or obstruction of the stream was effected with the plaintiff's consent or acquiescence.5
1 Kimberly v. Hewitt, 75 Wis. 371, 44 N. W. Rep. 303. See, also, Carpenter v. Gold, (Va.) 14 S. E. Rep. 329.
2 Evans V. Ross, (Cal.) 8 Pac. Rep. 88.
3 Clifford v. Larrien, (Ariz.) 11 Pac. Rep. 397.
In an action on an injunction bind to recover damages for loss of plaintiff's crops, by reason of his being restrained from
1 Riverside Water Co. v. Gage, 89 Cal. 410, 26 Pac. Rep. 889.
. Roberts v. Arthur, 15 Colo. 456, 24 Pac. Rep. 922.
Raymond v. Wimsette, (Mont.) 31 Pac. Rep. 537.
4 Sparlip v. Gotcher, (Oreg.) 31 Pac. Rep. 399.
5 Churchill v. Baumann, 95 Cal. 541, 30 Pac. Rep. 770.