Montecito Valley Water Co. v. City of Santa Barbara

HENSHAW, J.

The facts, conditions, and circumstances of this case may be learned by reference to

Montecito Valley Water Co.

v.

City of Santa Barbara,

144 Cal. 578, [77 Pac. 1113], which was another appeal in the same litigation. This is an appeal by James L. Barker, who the court found was unlawfully depriving the respondent of two and a half inches perpetual flow of water. The court required appellant to deliver this two and a half inches to respondent “out of the waters conveyed by defendant from his said

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tunnel in his said flume or conduit into the box or appliance connected with the pipe-line constructed or to be constructed by plaintiff,” etc. Appellant’s contention is that he should be allowed to discharge this water into the bed of the stream thirteen hundred feet above respondent’s dam. The effect of this unquestionably would be that respondent would lose the water, because the intervening Baton tunnel would draw down a portion of it, and, the bed of the stream having become dry, the rest would be wasted by percolation and evaporation. Appellant’s contention then amounts to this, that, notwithstanding he is a wrongdoer, he should be permitted to dispose of the waters, of which he has unlawfully deprived respondent, in such a manner as to do neither himself nor the respondent the slightest good. The judgment which the court rendered contained a wise provision for the conservation of these waters, and the direction for their disposition by appellant was not only clearly within the equitable powers of the court, but wholly just.

Appellant’s claim to the waters as a riparian owner is not pressed with much seriousness, and this is natural, considering that there is no pleading as to his riparian need for use of these waters, either as to quantity or amount of land upon which they are to be employed.

(Riverside Water Co.

v.

Gage,

89 Cal. 410, [26 Pac. 889].) Moreover, it is without dispute in the case, and so declared upon the appeal in