68 P. 589 | Cal. | 1902
This is an action brought to restrain defendants from maintaining a dam across Little Panoche Creek, a small natural watercourse in the western part of Fresno County. Plaintiff is both an appropriator of water from the stream and a riparian proprietor. Defendants are riparian proprietors, owning lands upon the stream above plaintiff. This dam is constructed upon defendants' lands. Judgment was rendered declaring the dam a nuisance and ordering defendants to abate it. They appeal from that judgment and also from an order denying a motion for a new trial.
As riparian proprietors, defendants were entitled to a reasonable *206
use of the waters of the creek upon their lands for domestic and irrigating purposes (Harris v. Harrison,
It seems to be plain that the defendants' use, as indicated by the foregoing finding of fact, is not a reasonable one. It is said in the case above cited, "that no proprietor can absorb all the water of the stream so as to allow none to flow down to his neighbor." In Lux v. Haggin,
Some point is made upon the claim that the waters impounded by the dam find their source in springs situated upon defendants' lands. If this be so, still, after these waters pass from the springs into the watercourse, whatever property *207
rights defendants had in the use of them, by reason of their ownership of the land upon which the springs were situated, were lost. (Eddy v. Simpson,
It is also claimed that plaintiff does not allege himself to be a riparian owner, but only asserts his rights as an appropriator. Even conceding the claim well made, still plaintiff, as an appropriator, has a right to have this dam abated under the facts disclosed by the finding made by the trial court heretofore quoted.
There are no other matters demanding the consideration of the court.
For the foregoing reasons the judgment and order are affirmed.
Van Dyke, J., and Harrison, J., concurred.