Ukhtomski v. Tioga Mutual Water Co.

SCOVEL, J.,

pro tem.

In 1929 and 1930 plaintiffs acquired under contract of sale approximately three acres of land in San Bernardino County, being part of a larger tract containing some six hundred acres known as the College Heights Tract. Plaintiffs’ land is covered with sage brush and rock and the value thereof was testified to by one J. B. Baile, Federal Land Bank appraiser of San Bernardino County, as being one hundred and fifty dollars per acre.

In 1932 defendant, Tioga Mutual Water Company, erected, at a cost of some seven thousand dollars, a concrete reservoir with the necessary outlets, pipe lines, etc., for the purpose of supplying water to the persons, some five hundred in number, residing in the College Heights Tract. Through inadvertence and mistake a portion of the reservoir was constructed and pipe lines leading therefrom were laid upon a portion of plaintiffs’ lands, the amount so taken consisting of about fifteen-hundredths of an acre. The reservoir and its appurtenances now constitute the sole source of water, both for domestic and irrigation purposes, for these residents in College Heights Tract. After completion of the reservoir, plaintiffs brought this action, seeking damages for trespass

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to their lands and a permanent injunction restraining defendants from using and maintaining the reservoir. The trial court gave judgment in favor of plaintiffs for damages sus- ' tained by the trespass in the sum of seven hundred and sixty-two dollars and forty-one cents, refused to issue an injunction and gave to defendants an easement to maintain the reservoir and pipe lines on plaintiffs’ land. From this judgment plaintiffs appeal, contending that a permanent injunction should be granted restraining the continuing trespass and maintaining that the trial court was without power to grant defendants the easement for maintenance as set forth in the judgment. Respondents admit that the reservoir and pipe lines were constructed without plaintiffs’ consent and that the same constitute a continuing trespass, further conceding that in case of a continuing trespass a court of equity may enjoin the same, asserting, however, that the issuance of such an injunction is discretionary and that it should be refused where from the facts its issuance does not appeal to equity and good conscience.