Walker v. Emerson

McFarland, J. — This action was brought to enjoin defendants from depositing dirt upon plaintiff’s land, and from diverting water from plaintiff’s canal on his said land, and for damages. Judgment was rendered for plaintiff, enjoining defendants as prayed for, and defendants appeal from the judgment, and from an order denying a new trial.

We think that the evidence supports the findings.

Plaintiff owns a tract of land through which there is an artificial water-way, or canal, about seven feet deep [458]and forty feet wide, which is wholly owned and controlled by plaintiff, and was originally constructed mainly for purposes of navigation. It receives it waters — or most of them—from a slough connected with the San Joaquin River, and is filled and emptied by the flow and ebb of the tides of the Pacific Ocean, although the water which flows into it is river water, and fresh. The appellants divert water from said canal by means of a ditch which they dug through and over plaintiff’s land, and connected with the canal by a box. They seem to take the position that when the canal is filled by the influence of the tides, the amount of water in it is inexhaustible, and incapable of being diminished; that therefore the amount diverted by them can do respondent no damage, and that therefore an injunction will not lie. If there is any such principle with respect to water rights, it certainly could be applied only to a case where a party, without intruding upon the possessions of others, and without committing any direct trespass upon another’s land, took water from a stream at a point where he had a right to approach it, to the alleged damage of persons claiming water rights at other points on the stream. But there is, clearly, no principle by which a mere intruder can go upon the land of another, and take water from an artificial ditcli thereon. Such an act is an injury to the right, and if threatened to be continued should be enjoined, whatever opinion persons other than the owner may have about the extent of the damage that may result. “The right to an injunction, therefore, in such a case does not depend upon the extent of the damage measured by the money standard; the maxim de minimus does not apply.” (Learned v. Castle, 78 Cal. 461, and cases there cited.) It is true that the court finds -in one place that plaintiff was not actually damaged by the taking of the water that had occurred, which means, we suppose, that the court could not make any money estimate of such damage; but the court' also finds that “ if said defend[459]