Heilbron v. 76 Land & Water Co.

Belcher, C. C. Action to enjoin the diversion of water. The complaint was filed November IS, 1884, and the facts alleged therein are, in substance, as follows: The plaintiffs are and for more than two years have been seised and possessed, as tenants in common, of a tract of land situate in the counties of Fresno and Tulare, known as the Kings River ranch, and containing about fifty-four thousand acres. A natural watercourse, known as Kings River, flows for a distance of over thirty miles along and forms one of the boundaries of the ranch. A branch of the river, called Cole Slough, flows through the ranch for a distance of about ten miles, and at ordinary stages carries the greater portion of the water of the river. In its course through and along the boundary of the land, the water of the river moistens the soil, [190]and causes the production and growth of valuable crops of grasses. Plaintiffs, in order to increase the fertility of their lands, and to afford an abundance of grass and water for their stock on the ranch, have constructed and maintained a dam on Cole Slough, and have constructed canals and ditches, by means of which they have for more than two years conducted the waters of the river over and upon their lands, and have thereby irrigated a large portion thereof, causing the same to produce more abundant crops, and furnishing water for their live-stock on the land. For more than two years plaintiffs have had more than thirteen thousand head of live-stock grazing on their land, and the water of the river is necessary for the subsistence of such stock, and is the only water to which the stock on the ranch can have access. Plaintiffs are also cultivators, and have growing on the ranch about three thousand acres of alfalfa, and the waters of the river are necessary for the growth of that crop.

The defendant is a corporation organized for the purpose of diverting the waters of Kings River to be used in imgating lands at a distance from the river. It has constructed a canal about one hundred wide feet and four feet deep, with a grade of eighteen inches to the mile, and since about the 1st of November, 1883, without the consent and against the will of plaintiffs, has thereby diverted from the river, at a point above plaintiffs’ land, about one thousand cubic feet of water per second. The water so diverted flows away from the river and plaintiffs-’ land, and no portion of it is or can be returned to the river, but the whole thereof is lost or dissipated by absorption and evaporation. By reason of this diversion the quantity of water flowing past and through plaintiffs’ lands has been greatly diminished and rendered insufficient for the purposes of the ranch. Defendant threatens to, and unless restrained will, continue the diversion. Its canal has sufficient capacity to divert all