98 Cal. 179 | Cal. | 1893
— This action was brought by the city of Fresno in its corporate capacity to obtain a decree abating as a nuisance a certain ditch or canal, owned by the Fresno Canal and Irrigation Company, and which runs through parts of certain streets of said city. The Fresno Milling Company, who had purchased water from the ditch of the other defendant, and
The said canal was constructed, at great expense, more than five years before the incorporation of said city; the mill of the milling company was erected at an expense of nearly one hundred thousand dollars; other expensive and costly mills have been erected upon the banks of the canal, and are operated by its waters; and the canal after leaving the city distributes water for the irrigation of many farms. There are, therefore, many equitable considerations in favor of defendants; and such large properties should not be thus utterly destroyed, unless such result necessarily follows from an application of the rules of law.
It appears that in 1874, the land now composing the city of Fresno, and a very large body of land consisting of many thousands of acres adjoining it, was the property of the Contract and Finance Company; and that in said year the agents of said company visited that locality for the purpose of selecting a site for a new town or city. They consulted Mr. M. J. Church, who was the president and superintendent of the said defendant, the Fresno Canal and Irrigation Company, as to a proper town site. They wanted a place to which water could be brought, saying that “a town without a stream of water was no town at all.” Church informed them that the place where the city of Fresno was afterwards located could be more readily supplied with water than any other part of the territory designated; and that he would pledge himself that his company would put a stream of water through that place, if they located the town there. Upon that assurance the town was shortly afterwards located at that place. Afterwards the projectors of the town, fearing that Church might fail to bring in the water, offered him. inducements in the way of both money and land to bring it in. The ditch was commenced by Church’s company about 1874, and was completed about 1879 or 1880, the water being brought into the town through the ditch in 1880. The board oi supervisors of the county were consulted about the matter,
If, however, it were necessary to discuss the proposition here, it is not clear under the law that in this case an estoppel in pais cannot be invoked by appellant as against the respondent. In 2 Dillon on Municipal Corporations, the author, after reviewing the subject at great length and referring to many authorities, uses this language, which seems to be the result of such authorities: “ The author cannot consent to the doctrine, that, as respects public rights, municipal corporations are impliedly within ordinary limitation statutes. It is unsafe to recognize such a principle; but there is no danger in recognizing the principle
The court finds “ that said canal is an irrigating ditch, that it flows out west of the city and is there distributed, and supplies water for the irrigation of many farms; that within the city extensive and costly mills for the purpose of crushing grain and manufacturing flour have been erected on its banks to be operated by its waters; that these industries would be injured should the canal be prevented from running within the city.” The court also, in finding 14, finds “ that said canal can be constructed below the surface of said street, and covered up in such a manner that the surface of said street can be restored to its former condition, so that it will not be an obstruction to the free use and enjoyment and travel of said street.” The constitution of the state, section 1 of article XIV., declares that “ the use of all water now appropriated, or that may be hereafter appropriated, for sale, rental, or distribution is hereby declared to be a public use.” (See also People v. Stephens, 62 Cal. 209; McCrary v. Beaudry, 67 Cal. 120; County of Fresno v. Canal Co., 68 Cal. 359.) And the statutes of the state recognize ditches and canals as of public use, and regulate such use. For instance, section 551 of the Civil Code provides that where they cross, or are on the lines of public highways, their works a must be so laid and constructed as not to obstruct public highways.” The canal of the defendants was constructed in the face of, and without objection by the supervisors of the county or the public; and the city of Fresno, when it was incorporated, found said canal occupying parts of certain streets in the city which it then took control of. Under these circumstances, if the nui
But in the case at bar the findings do not clearly set forth what the real facts are. Finding 14, above quoted, is inconsistent with other findings, and particularly with the statement (whether considered as a finding of fact or a conclusion of law) that “ said canal where it traverses the streets of said city is a nuisance per se,” and for this reason the judgment and order must be reversed.
Judgment ánd order reversed and new trial ordered.
Be Haven, J., and Fitzgerald, J., concurred.