Bonetti v. Ruiz

Injunction—Diversion of Water Percolating from Plaintiff’s Well in Public Road—Permission of Supervisors—Ownership of Land Subject to Basement—Proper Remedy.—Where plaintiff's premises abut on each side of a public road, and plaintiff owns the fee in the road subject to the easement, and has a -well on Ms land near the road, from which water percolates beneath the road, and the supervisors of the county assumed to grant the right to the defendant to sink a well in the road and to extract and carry therefrom any water developed therein, which injured plaintiff’s well and land, and depreciated its value, an injunction will lie to restrain the defendant from the further extraction and removal of such percolating water. An injunction, and not ejectment, is the proper remedy for such grievance.

Id.—Remedy by Ejectment—When Applicable.—The remedy by ejectment is applicable only where parties enter upon and use for improper purposes the surface of the ground which constitutes the extent of the easement. Though such remedy might lie for the obstruction and unauthorized use of the surface of the public road, yet where no order was made or asked on that account, the existence of such remedy is immaterial.

Id.—Interference With Water Rights Part of Fee—Remedy by Injunction.—Where the defendant is shown to be removing and carrying away percolating water beneath the surface of the ground which is part of the fee, and is wholly disconnected from the easement, outside of what right the public authorities might possess to extract sufficient water for the care of the road, which was not the right granted by them, the acts of the defendant were wrongful and injunction was the proper remedy to prevent such wrongful acts from ripening into a right. An injunction always lies to restrain threatened permanent interference with water rights.

Id.—No Distinction Between Percolating Water and Riparian Rights as to Injunction.—There should be no distinction as to the remedy by injunction between the rights of the owner of the fee in the percolating water and that of the riparian owner along the stream.

Id.—Finding as to Plaintiff’s Ownership of Land—Sufficiency of Evidence—Conflict.—Though the evidence is conflicting as to the extent of the land owned by the plaintiff upon which dcfendant’swell was constructed, yet there is evidence tending to show that the well constructed by the defendant was upon the premises described as belonging to plaintiff, and where the trial court, after hearing the witnesses and having before it the maps and exhibits, and after considering the conflicting testimony found in plaintiff’s favor, the finding as to plaintiff’s ownership cannot be disturbed.

Id.—Testimony of Plaintiff as to Division Pence—Objection to Repetition of Answer Previously Given.—Where the plaintiff had previously testified as to the division line between his land and that of a neighbor, without objection, and there was other evidence tending to show the true line as testified by him, the allowance over objection of a repetition of the same answer, assuming it to be improper, was without prejudice.