City of Fresno v. Fresno Canal & Irrigation Co.
Before: McFarland
Synopsis
Canal in Streets of City—Abatement of Nuisance—Erroneous Decree.— Where a canal was constructed at great expense more than five years before tile incorporation of a city through which it passes, at the instance and with the co-operation of the original owners of the land and projectors of the town site, and without objection from the board of supervisors of the county, who were consulted about its construction, and expensive and costly mills were erected upon its banks and operated by its waters, and the canal after leaving the city distributes water for the irrigation of many farms; and where, after the incorporation of the city, its trustees by ordinances and official acts regularly done recognized the existence of the canal, and assessed it for taxes, the fact that the canal runs through streets of the city which were dedicated by the owners of the town site, after the agreement to construct the canal, bnt prior to its actual construction, will not justify a decree at the suit of the city authorities, commenced eleven years after its construction, declaring the canal a nuisance per se, and ordering it to be entirely abated, filled up, and destroyed.
Id.—Adverse Use of Streets—Estoppel in Pais.—Although, as a general rule, no right to any part of public streets can be acquired by adverse use, it seems that, in exceptional cases, the principle of estoppel in pais may he invoked against the public, leaving the court to decide the question not by the mere lapse of time, but upon all the circumstances of the case, as right and justice may require.
Id.—Public Use of Water—Obstruction of Hibhway by Canal—Bemedy for Nuisance. — The use of water appropriated for sale, rental, or distribution, is a public use, under the constitution of this state, and the statutes of the state recognize ditches and canals as of public use, and regulate such use, providing that where they cross, or are on the lines of public highways, their work must be so laid-and constructed as not to obstruct the public highways; and when the nuisance consists merely in the manner in which the canal is conducted and managed, it should be remedied by enjoining its use in such manner as to make it a nuisance, without decreeing a total destruction of the property.
McFarland, J. — This action was brought by the city of Fresno in its corporate capacity to obtain a decree abating as a nuisance a certain ditch or canal, owned by the Fresno Canal and Irrigation Company, and which runs through parts of certain streets of said city. The Fresno Milling Company, who had purchased water from the ditch of the other defendant, and [181]had built a large flouring mill on the banks of the canal, was also made a party defendant. The court declared the canal a n uisance per se, and ordered it to be entirely abated, that is, filled up and entirely destroyed. From the judgment and from an order denying a new trial, said defendant, the Fresno Milling Company, appeals.
The said canal was constructed, at great expense, more than five years before the incorporation of said city; the mill of the milling company was erected at an expense of nearly one hundred thousand dollars; other expensive and costly mills have been erected upon the banks of the canal, and are operated by its waters; and the canal after leaving the city distributes water for the irrigation of many farms. There are, therefore, many equitable considerations in favor of defendants; and such large properties should not be thus utterly destroyed, unless such result necessarily follows from an application of the rules of law.
It appears that in 1874, the land now composing the city of Fresno, and a very large body of land consisting of many thousands of acres adjoining it, was the property of the Contract and Finance Company; and that in said year the agents of said company visited that locality for the purpose of selecting a site for a new town or city. They consulted Mr. M. J. Church, who was the president and superintendent of the said defendant, the Fresno Canal and Irrigation Company, as to a proper town site. They wanted a place to which water could be brought, saying that “a town without a stream of water was no town at all.” Church informed them that the place where the city of Fresno was afterwards located could be more readily supplied with water than any other part of the territory designated; and that he would pledge himself that his company would put a stream of water through that place, if they located the town there. Upon that assurance the town was shortly afterwards located at that place. Afterwards the projectors of the town, fearing that Church might fail to bring in the water, offered him. inducements in the way of both money and land to bring it in. The ditch was commenced by Church’s company about 1874, and was completed about 1879 or 1880, the water being brought into the town through the ditch in 1880. The board oi supervisors of the county were consulted about the matter,
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