Byers v. Colonial Irrigation Co.

THE COURT.

The plaintiffs appeal from a judgment in their favor, claiming that on the findings a different judgment should have been entered. The case as shown by the findings is as follows: The plaintiffs are the owners of several tracts of

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land, described in the complaint, lying in one body on the west shore of Honey Lake, in Lassen County, through which there flows easterly into the lake, through several channels, the stream known as. Susan River, and the suit was brought to enjoin the maintenance of a dam lately constructed by the defendant in the river, to the west of plaintiffs’ lands, and just below the mouth of a confluent known as Willow Creek, and to have the same abated as a nuisance.

The findings of the court, so far as material to the question involved, are, that ’the plaintiffs are the owners, as riparian proprietors and by appropriation, of the right to use the waters of Willow Creek, and also the waters of Susan River, except certain of its waters subject to diversion by the defendant, above the junction of the streams, as adjudicated in a former decree, and, as conclusion of law, that they are entitled to the unobstructed flow to their lands of all the waters of Willow Creek, and of the waters of the river, except those subject to the defendant’s right of diversion, as defined in the former decree; “that the said dam, as constructed, maintained, and used, obstructed the natural and regular flow of the waters of Willow Creek and Susan River to plaintiffs’ lands, . . . and diverted from said stream at said point large quantities of the said waters, and deprived plaintiffs of the use thereof, to their several great and irreparable injury”; and that the defendant, at the time of the commencing the suit, “ then was and still is so maintaining and using, and threatening to so use and maintain, said dam so as to obstruct the plaintiffs in their several beneficial uses of the waters of said stream,” etc.; “that the dam complained of . . . enables the defendant to divert, at the site thereof, and use the waters of Susan River, which it is entitled to store and use under the terms of the decree hereinbefore set out; but the defendant has so used, and threatens to so use, said dam as to obstruct the flow of the waters of Willow Creek and Susan River to plaintiffs’ lands,” etc.; and as conclusion of law the court finds that “the dam complained of, ... as maintained and used by the defendant, is a nuisance to said plaintiffs,” etc., “ and that they are entitled to a perpetual injunction restraining the defendant, its agents,” etc., “from maintaining said nuisance, and from in any manner diverting from said stream,” etc., “any of the waters to which plaintiffs are entitled, as aforesaid.”