Heilbron v. 76 Land & Water Co.

Belcher, C. plaintiffs commenced this action in the superior court of Tulare County to obtain a perpetual injunction restraining the defendant from diverting any of the waters of Kings Eiver into and through a certain canal constructed and owned by defendant. After trial the court granted the injunction as prayed for, and “further ordered, adjudged, and decreed that said defendant forthwith fill up the head of its said canal where it connects with the channel of said Kings Eiver, and close the same so that no water can or will flow from said river into defendant’s said canal.” From .this judgment, and an order refusing a new trial, an appeal was taken, and in deciding the questions presented on the appeal, it was, among other things, said by this court (80 Cal. 189):—

[9]“ It clearly appears that defendant is a riparian proprietor above the plaintiffs. Its lands can be irrigated with water carried through its canal, and irrigation is necessary to make them productive. Being an upper riparian owner, defendant is entitled, as against the plaintiffs, to make a reasonable use of the water of the stream for the purpose of irrigating its riparian lands, and it is only for an unreasonable and unauthorized use that an action will lie. What is a reasonable use is a question of fact, and depends upon the circumstances appearing in each particular case. [Citing authorities.]

“ One of the purposes for which the defendant constructed its canal was to irrigate its lands. And the fact that it has not yet used the water upon its own lands cannot destroy or impair its right. ....

“ This being so, we are unable to see how the court could properly grant a perpetual injunction restraining the defendant from ever, at any time or for any purpose, causing or permitting any water from the river to flow into or down its canal.

“ Beside, there may be times of flood or high water when no one below would be injured if defendant's canal should carry away from the river surplus water to its full capacity. Why should defendant be required to fill up the head of its canal so that no water at such times can flow into it?

“From what has been said, it is not to be understood that defendant has a right, as against riparian owners farther down the stream, to divert water from the river for the purposes of sale, or for use on lands which are not riparian.”

The judgment and order were accordingly reversed, and the cause remanded, with directions to the court below to enter a decree in conformity with the views expressed in the opinion.