Tuolumne Water Co. v. Chapman

8 Cal. 392 | Cal. | 1857

Burnett, J., after stating the facts, delivered the opinion of the Court—Terry, C. J., concurring.

The demurrer admits the facts as alleged in the complaint. 3 Cal. R., 323.

The alleged allegation in the complaint, that the defendants wrongfully claim some pretended and fictitious right to the use of the water, does not prejudice the right of the plaintiff to the injunction. Merced Mining Co. v. Fremont, April, 1857.

The diversion of a water-course is a private nuisance. Willard’s E. J., 392; Adams E., 310 ; Story’s E. J., § 927.

There can be no doubt of the truth of the proposition, that no equitable remedy can be had for a mere jpast diversion of a water-course, but where the injury is continuing, relief may be appropriately sought in equity. It is only in equity that future injury can be restrained. Continued diversion of water from a party entitled to it, is such an irreparable injury as a Court of Equity will redress.

But in this case it is insisted by the defendants that the remedy by injunction cannot be maintained, until the plaintiff has established his title by a suit at law.

. The only object in establishing title at law, is to show that the right is in the plaintiff. The suit at law is only a means to accomplish a given end. When the end is already obtained, there could be no reason for doing an idle thing. This, the law, as a rational system, never requires to be done. If the title of the plaintiff be conceded, then there can be no need of a trial at law to establish that which is already admitted. Willard’s E. J., 392; 6 Hare P. R., 89.

By the demurrer in this case, the defendants admit the right of plaintiff to the water in the gulch, that they have wrongfully diverted it, and continued to do so, and refuse to desist, under a fictitious claim of right.

It is not a mere fictitious claim of right that will prevent the injunction. Suppose the defendants had stated in their answer that they admitted the right of plaintiff to the use of the water, but also insisted thatthoy bad a pretended and fictitious claim to it, then there could have been no necessity of a trial at law under such an admission. Had the defendants answered, denying the right of the plaintiff, and claiming title themselves, then a very different question would have been presented, in reference to which it is not now necessary to express any decided opinion. But it may admit of doubt whether, under our system, where the same Court administers both law and equity, and the distinction in pleading is abolished, the former rule would apply, without qualification.