San Joaquin & Kings River Canal & Irrigation Co. v. Fresno Flume & Irrigation Co.

At the close of the argument Shaw, J., delivered the opinion of the court, Sloss, J. and Lawlor, J. concurring:

The plaintiff appeals from a judgment against it, rendered upon an order sustaining a general demurrer to its complaint.

It appears from the allegations of the complaint that the defendant had built a dam across Stevinson Creek, a tributary of the San Joaquin River, and had by means of said dam impounded a large quantity of the water falling upon the

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watershed tributary to said creek; that the plaintiff was the owner of the right to divert from said river, below the mouth of said creek, a large quantity of the water of the river; that theretofore plaintiff had brought suit against the defendant for an alleged diversion of water from said creek and that in that action it had been determined that plaintiff was entitled to said quantity of water of said river, and to that extent possessed the right to maintain the natural flow of said creek; that thereafter the defendant had diverted from said creek, of the natural flow thereof, quantities of water which otherwise would have continued down the creek into said river and into plaintiff’s canal, whereby it had been deprived of the water of said creek and river to which it was entitled, to its damage, and that defendant threatened to continue such diversions. Judgment was asked for damages and for an injunction to prevent future diversions.

The record sets forth the complaint, answer, findings, and judgment in the former action. Said judgment was affirmed and the findings construed on appeal to this court. (See

San Joaquin etc. Co.

v.

Fresno Flume etc. Co.,

158 Cal. 626, [35 L. R A. (N. S.) 832, 112 Pac. 182].) It appears further that the defendant had built a dam at Stevinson meadows, across said creek by which it formed a large reservoir in which it collected and retained the waters coming from the watershed thereto during times of unusual flood and rains and melting snows, and that the diversions which the defendant made, both before and since the former judgment, were of water taken directly from this reservoir. It is claimed in support of the demurrer that the former judgment establishes the right of the defendant to take water from the reservoir, although such taking decreases the amount of water naturally flowing in the creek below the reservoir and decreases the amount in the river so that the plaintiff cannot obtain therefrom the quantity to which it is entitled under that judgment.