127 F. 741 | U.S. Circuit Court for the District of Southern California | 1903
As the decision of this matter has been considerably delayed already, I shall not take further time to prepare a written opinion, but simply announce now my conclusions.
i. The riparian doctrine, with irrigation as one of its uses, is the set-, tied law of California, and includes a right in each riparian owner to the ordinary flow of the stream, without deterioration in quality oj:
2. The bill herein assails the point, as well as the fact, of diversion; and the evidence adduced by defendants to establish an estoppel against complainant California Pastoral & Agricultural Company, as lessee of the Herminghaus lands, is insufficient for that purpose. Lux v. Haggin, supra. The case of Curtis v. La Grande Hydraulic Water Co. (Or.) 23 Pac. 808, 25 Pac. 378, 10 L. R. A. 484, is, I think, distinguishable in essential particulars from the case at liar. If not, however, then it is inharmonious with Lux v. Haggin, supra, and I shall follow and apply the rule enunciated in the latter case.
3. “The flow of natural water over land is a continuous source of fertility and benefit, and its withdrawal is followed by consequences which are perpetually injurious to the freeholder. * * * The flow of the water of a stream, whether it, overflows the banks or not, naturally irrigates the ground to a great and unknown extent, and thus stimulates vegetation; and the growth and decay of vegetation add not only to the fertility, but to the very substance and quantity, of the soil.” Heilbron v. Water Ditch Co., 75 Cal. 117, 121, 122, 17 Pac. 65. “A riparian proprietor,” and this includes a lessee (Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 17 Pac. 535, 7 Am. St. Rep. 183; Heilbron v. Canal Co., 76 Cal. 11, 17 Pac. 933), “is entitled to an injunction to restrain the unlawful diversion of the waters of a stream adjoining his land, although the injury caused by the diversion is incapable of ascertainment,
“I desire to say, however, that the ease of Modoc Land & Live Stock Co. v. Booth, 102 Cal. 151 [34 Pac. 431], cannot be taken as authority for the proposition that a riparian proprietor on an ordinary natural stream cannot, by injunction, restrain an unlawful diversion of the water of the stream, unless he can show actual special damage oilier than such as thus legally arises from a deprivation of the substance of his estate. To so interpret that case would be to make it overrule every decision of this court upon the subject from the organization of our state government to the present moment. All the Modoc Case decides is that, to use the language in the opinion in that case, taken from Pomeroy: ‘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,’ etc. Of course, with respect to a river of the size of the Mississippi or the Sacramento, no probable diversion would ever perceptibly diminish the flow of the current. Illustrations drawn from supposed riparian rights in such rivers are scarcely more pertinent than would be illustrations from supposed riparian rights on the Gulf Stream.” Vernon Irr. Co. v. Los Angeles, 106 Cal. 256, 257, 37 Pac. 762.
4. The contract between the California Pastoral & Agricultural Company and other persons, as parties, respectively, of the second, third, fourth, and fifth parts, referred to in paragraphs 11 and 12 of defendants’ return to order to sliovV cause, and attached as “Exhibit A” to the affidavit of defendant James, was entered into June 4, 1901, while the lease of G. Herminghaus to the California Pastoral & Agricultural Company was made September 1, T901, and therefore the riparian rights acquired under the flatter instrument are unaffected by the former. It is unnecessary now to inquire how, or to what extent, if any, said first-named contract, the one attached as an exhibit to the affidavit of defendant James, changes or affects the riparian rights of the complainant California Pastoral & Agricultural Company, growing out of its ownership of the lands described in Exhibit A to the bill.
5. Storm or freshet waters, which any person who can may impound and use, are “such waters as flow down a stream during and after a rain storm, and which are in excess of the ordinary flow.” Fifield v. Spring Valley Water Works, 130 Cal. 552, 62 Pac. 1054. I am of opinion, from the evidence submitted on this hearing, that the waters which the canal and dam in controversy in this suit were intended to divert, and are capable of diverting, do not fall within said definition, but are a flow which comes every year and lasts for three or four months. On
“Nor can that flow be said, to be an extraordinary flood which can be counted ’ .upon as certain to occur annually, and to continue for months. The defendant 1 has no reservoir to retain the surplus waters of casual and unusual freshets, and its works would be of little value if its dependence were only upon such .waters.” Heilbron v. Canal Co., 75 Cal. 432, 17 Pac. 535, 7 Am. St Rep. 183.
6. The circumstance that some of the waters of said river, below said point of diversion, at times escape through a natural slough and overflow the banks of the river, does not justify said diversion, nor show that it is without injury to complainants. If it were conceded, contrary to the decision in Heilbron v. Canal Co., 75 Cal. 426, 17 Pac. 535, 7 Am. St. Rep. 183, that the waters which escape and overflow, as above indicated, are wild', surface waters, within the meaning of those terms ás used in Cairo & V. R. Co. v. Stevens, 73 Ind. 283, 38 Am. Rep. 139, ■•and' other cases
7. The defendants, in their return to the rule to show cause why a preliminary injunction should not issue, and also in the affidavit of E. A. Fotheringham, assert, in general terms, a right by appropriation in the James Canal Company, as successor of the Enterprise Canal & Land Company; to divert 500,000 cubic inches of water; but their diversion was not made until 1898, and long prior thereto complainants’ lands were held in private ownership, and five years had not elapsed before the commencement of this suit. -Besides, defendants expressly decline in argument to press said claim by appropriation, and I cannot now do otherwise than conclude that it is without merit.
8. From the principles of law enunciated above, and the facts clearly shown in evidence, it follows that the diversion complained of is wrongful, and not an ordinary trespass, but, in reality, a continuous taking of property; and, since said injury cannot be adequately compensated in money damages, and is therefore irreparable (Heilbron v. Canal Co., 75 Cal. 426, 17 Pac. 535, 7 Am. St. Rep. 183), the equitable rule as to comparative hardships, sometimes determinative on motions for provisional relief, is inapplicable (16 Am. & Eng. Ency. of Law [2d Ed.] 360).
McCormick v. Kansas & St. Joe R. R., 70 Mo. 359, 35 Am. Rep. 431; Morris v. Council Bluffs, 67 Iowa, 343, 25 N. W. 274, 56 Am. Rep. 343; Abbott v. Kansas City & St. Joe R. R., 83 Mo. 271, 53 Am. Rep. 581.