Holmes v. Snow Mountain Water & Power Co.
Before: Beasly
Synopsis
New Trial—Order Denying Eight to Nominal Damages—Failure to Leave to Jury—Insufficient Ground for Beversal.—An order . denying a new trial in an action wherein plaintiff is entitled to nominal damages, will not be reversed for t'he mere failure to leave such question to the jury.
Water Eights—Injunction and Damages for Diversion—Intervention of Public Interests—Estoppel.—The right to an injunction and damages for diversion of the flood waters of a stream is barred by the intervention of public interest, where the plaintiff’s predecessor in interest stood by while the defendant public service corporation expended over á million dollars in the erection of a dam, tunnel, and plant, and even assisted in some ways in the work by furnishing commodities which the defendant needed in the prosecution of its enterprise and also sold part of the land to defendant for a dam site, all of which plaintiff knew when he purchased the land while defendant was in the midst of the building of the dam and preparing to divert the waters, taken in connection with the additional fact that he waited four years after the public use began, and until thousands of people had become dependent upon it for light and power and necessary water for irrigation before bringing his action.
BEASLY, J.,
pro
tem.
In the year 1908 the Snow Mountain Water & Power Company completed a dam on Eel River, in Mendocino County, by which it impounded and diverted a large part of the stream through a tunnel from the watershed of the Eel River to that of Russian River, none of the water being ever permitted to return to the Eel River watershed. The plaintiff Holmes owns land on both sides of Eel River
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about two hundred feet below defendant’s dam. The bluffs of the river on plaintiff’s land are from forty to sixty feet high; the land itself is broken, and while some acres of it were cultivated to crops, and some other parts of it set to fruit trees, and other portions were capable of being cleared, cultivated, and also irrigated, none of the water of Eel River had ever been used at any time to irrigate any part of plaintiff’s land, nor does plaintiff appear to have been at any time previous to the trial in a position to use the river water for irrigation. About four years after the completion of the defendant’s dam and the beginning of the diversion of water plaintiff began this action, in which he asks that the company be enjoined from continuing to divert the water of Eel River; and also asks damages in the sum of five thousand dollars which he claims to have already suffered on account of the diversion of the water, and twenty-five thousand - dollars which he claims he will suffer in the future if the diversion is continued.
By the answer of the defendant it appears that the latter is a public service corporation; that the impounded water is used to generate electricity, which is sold to people in Mendocino and Sonoma Counties, and is also, after being run through defendant’s power plant, used for irrigation in various portions of the upper Russian River valley. These facts do not appear in plaintiff’s complaint, the plaintiff proceeding by that instrument against the defendant as if the latter was simply a private corporation trespassing upon his property rights by diverting the water from the river which flows through his property.
The plaintiff in his brief abandons, if he ever asserted, any right to either damages or injunction by reason of the diversion of the flood waters of the stream, saying therein that he is not claiming the flood waters of the Eel River. This narrows considerably the questions involved in this case. The evidence shows that of the 240 cubic feet per second of water which the defendant diverts all but ten cubic feet per second is impounded winter flood water; that the winter flow of the river is about fifty thousand cubic feet per second, which the dam accumulates in a two-mile reservoir for use in the dry season; that the natural flow during the dry season is but ten cubic feet per second, thus reducing the amount of water impounded after subtracting the impounded flood water.
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