87 Cal. 505 | Cal. | 1891
The complaint alleges, in substance, that the defendant had by means of a canal appropriated the waters of a certain creek for the purpose of
The court below rendered judgment in favor of the plaintiff, and enjoining the defendant from depriving plaintiff of the use or flow of the water of said canal except at such times as said water may be needed and actually used for running and operating said mill.
From this judgment, and an order denying his motion for a new trial, the defendant appeals.
The findings do not support the judgment. The court finds that the defendant did on the 10th of August, 1888, and while he was not using the water for the operation of his mill, deprive the plaintiff of the use of said water by closing a certain waste-gate; but there is an entire omission to find how long such' deprivation continued, or 'whether defendant ever threatened or threatens to continue so to deprive plaintiff of the use of said water at times when said mill is not being run, or needed for running the same. The allegation that defendant’s act was continuing, and that he threatened to continue to deprive plaintiff of all use of the water in controversy, was a material one. Without it, the complaint would not state facts sufficient to entitle plaintiff to the injunction asked for and obtained, and the failure of the court to
“ The complaint seems insufficient to sustain that part of the judgment granting the injunction. It is simply alleged, in substance, that defendants, between certain specified dates, diverted the waters of the stream, to the plaintiff’s damage in a sum stated. There is no allegation that the injury was continuing, or threatened to be continued, or likely to be continued. The circumstances stated are sufficient for a recovery of damages, but no equitable facts are alleged to sustain the injunction. The writ of injunction, though remedial, must be based upon equitable circumstances. From all that appears in the complaint, the injury was only temporary, and not likely to continue.”
And so in this case, it may be said, from all that appears in the findings of the court, plaintiff’s injury was only temporary and past, and not likely to continue at any time in the future. (See also Tuolumne Water Co. v. Chapman, 8 Cal. 392.)
This view renders it unnecessarj'- to pass upon the sufficiency of the evidence to sustain the findings of the court, as the reversal of the judgment compels a reversal of the order denying defendant’s motion for a new trial.
Judgment and order reversed.
McFarland, J., and Sharpstein, J., concurred.