Fifield v. Spring Valley Water Works

VAN DYKE, J.

The plaintiff and appellant is the owner of a certain tract of land in San Mateo county, through which the waters of San Mat'eo creek flow in a natural channel. The defendant is a corporation conducting and carrying on the business of supplying the inhabitants of the city and county of San Francisco with water. It is charged in plaintiff’s complaint that defendant is engaged in constructing a tunnel above plaintiff’s land, with the intent and purpose of diverting through said tunnel, when completed, the waters of said creek into the San Andreas reservoir, thereby preventing the same from reaching or flowing through .the land of the plaintiff. ..And-, an injunction is prayed to prevent the defendant from so diverting the waters of said creek.

[553]

In defendant’s answer it is denied that said defendant threatens, or ever has threatened, or intends to divert the waters of said creek as in the complaint alleged, but avers that it only intends to divert through said tunnel the storm or flood waters, and none of the ordinary flow of said stream.

The court finds that it is not the object of defendant in constructing said tunnel to divert any of the waters of said creek into said' San Andreas reservoir, except said storm or flood waters, or waters flowing in said creek during times of extra high water or freshets in said stream, nor in any other way, nor to any other extent, to prevent the waters of said creek from reaching or flowing through- the lands of the plaintiff. The judgment and decree entered upon the findings is, after defining storm or freshet waters to be such waters as flow down a stream during' and- after a rain storm and which are in excess of the ordinary flow, “that the defendant is hereby enjoined and restrained from diverting or in any way restraining, at any time or times, the ordinary flow of water in San Mateo creek through the lands of plaintiff, as said ordinary flow is above described and defined; and that the defendant be, and it is hereby, permitted and authorized, by the flume and tunnel mentioned in its answer, as above plaintiff’s said land or otherwise, to take and divert from said San Mateo creek, above the said lands of plaintiff in the complaint described, the storm or-freshet or flood waters (as above described or defined) that may flow in or into said San Mateo creek above said lands, during times of extraordinary high water or freshet in said creek or stream, provided that defendant permits at all times all the ordinary flow of said creek to go down to plaintiff’s lands, and provided that defendant shall make such diversion so as not at anytime to stop or divert any of the said ordinary flow above plaintiff’s said, lands, and provided that it uses, and it is hereby directed to use in the premises, mechanical means capable of accomplishing and actually accomplishing such results as aforesaid, namely, permitting at all times all the ordinary flow of said San Mateo creek to go down to said plaintiff’s lands described in the complaint, and so constructed as not at any time to. stop or divert any of said ordinary, flow down said creek to said plaintiff’s said lands.”