Coleman v. Le Franc

CHIPMAN, C.

The action was brought to obtain a judgment enjoining defendants from diverting any of the water of Arroyo Seco de los Capatancillos at a point above the lands of plaintiffs, in Santa Clara County, or from obstructing, hindering, or in any manner interfering with the free flow of said water in its natural channel in, through, and upon the lands of the plaintiffs, and for general relief. The court, in its conclusions of law, found that “plaintiffs are not entitled to an injunction against defendants as prayed for, or at all, and the defendants are entitled to a judgment dismissing the plaintiffs’ complaint and this action, with costs, but without prejudice to the right of plaintiffs to maintain another action to determine the proportion of water which the respective riparian owners may use.” Judgment was entered accordingly, from which plaintiffs appeal.

No point is made on the insufficiency of the evidence to support the findings. Plaintiffs’ contention is, that upon the admissions of the pleadings and the facts found judgment should have been entered for plaintiffs.

The Arroyo is a stream that flows a large quantity of water in flood seasons, but at the close of the rainy season gradually diminishes the flow, and finally water ceases altogether to run in the bed of the stream. The court found that in some seasons

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of the year the water does not run down as far as defendants’ dam. This dam, by means of which defendants diverted the flood-waters on to their land, is constructed entirely across the stream, and was between two and three feet high. Just above the northerly end of the dam is a flood-gate, through which the water when flowing over the dam could be taken to a flume and thence over defendants’ land, the purpose of defendants being to utilize the flood-water at times Avhen there was abundance for all riparian owners. It is contended, however, that at seasons of low water “it is inevitable that the dam maintained by the defendants will interfere with the flow of the water; and this court will take notice of the fact, relying upon its own experience and its own judgment, that the maintenance of such a permanent dam necessarily obstructs and prevents the flow of water at certain seasons of the year, and, consequently, involves a violation of the riparian rights of the plaintiffs.” (Citing Code Civ. Proc., sec. 1875, subd. 8;