46 Kan. 701 | Kan. | 1891
Opinion by
The material facts in this case are substantially undisputed, and are that Long is the owner and has been in the possession of the land described in his petition for a long time prior to the commencement of this action, and to the building of the railroad by the plaintiff' in error, and is still the owner and in the possession and daily occupancy thereof; that into and over the land of Long there ran a natural water-course which was fed largely, and in excessive dry weather entirely, from and by a spring on the
A mandatory injunction is rarely granted. The case must be an extreme one to authorize its issue. It is universally restricted to cases where a court of law cannot grant adequate relief, or where full compensation cannot be made in damages. Is this such a case? It must be conceded that the defendant in error has the undoubted legal right to the use and enjoyment of the flow of the water in a natural water-course that runs through his land. This right is an immemorial one, and is protected by all courts. It may be conceded also, that the
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.