Miller & Lux v. Madera Canal & Irrigation Co. , 155 Cal. 59 ( 1909 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This appeal was originally heard in Department Two of this court, and the order appealed from was there affirmed. Upon application of the appellant, a rehearing was granted and the cause ordered to be heard in Bank.

The opinion filed by the Department fully and satisfactorily disposes of all the points arising on the appeal and is adopted as the opinion of the court in Bank. A few words may, however, be added to what has heretofore been said.

The rehearing was ordered for the reason that the case was thought to involve the question of the right of a riparian owner to enjoin the diversion by an upper appropriator of water of a stream running at times of unusual and extraordinary flood in such quantities that the intended diversion could not appreciably affect or substantially injure the riparian rights of the plaintiff. This question has, to some extent, received consideration at the hands of this court in Modoc Land Co. v.Booth, 102 Cal. 151, [36 P. 431]; and Fifield v. Spring ValleyWater Works, 130 Cal. 552, [62 P. 1054]; and the appellant argues that the rule declared in those cases requires a reversal of the order now under consideration. It appears, however, that the record before us does not present the supposed problem.

This is an appeal from an order granting a temporary injunction. It would be superfluous to cite authorities to show that the granting or refusing of a preliminary injunction is a matter resting largely in the discretion of the trial court. Where there is a substantial conflict in the evidence regarding an issue which may affect the discretion of the court in passing upon the application for such injunction, the order made will not on appeal be overthrown merely because there may be considerable or even preponderating evidence, which, if believed, would have led to a contrary conclusion. The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the rights claimed by him. When the cause is finally tried, it may be found that the facts require a decision against the party prevailing on the preliminary application.

While the defendant claims, and at the hearing of the motion for an injunction offered evidence with the purpose of showing, that the waters sought to be diverted by it were the results of mere occasional freshets or floods, which, if not taken, would leave the bed of the stream and be wasted, the plaintiff introduced a quantity of evidence tending to prove that the waters which defendant was about to take formed a part of the usual and ordinary flow of the Fresno River; that such flow was one which occurred in almost every season of normal rainfall, and that it passed the plaintiff's land in a continuous body of water, through a well-defined channel, and eventually emptied into the San Joaquin River and through it into the sea. That the owners of land bordering upon such a flow of water are riparian proprietors, entitled to all the rights pertaining to riparian ownership, is a proposition fully sustained by the authorities cited in the Department opinion.

It is suggested that a different rule should apply in a semi-arid climate like that of California, where the fall of rain and snow occurs during only a limited period of the year, and, consequently, streams carry in some months a flow of water greatly exceeding that flowing during the dry season, with the result that such increased flow is not, at all points, confined within the banks which mark the limits of the stream at low water. But no authority has been cited, and we see no sufficient ground in principle, for holding that the rights of riparian proprietors should be limited to the body of water which flows in the stream at the period of greatest scarcity. What the riparian proprietor is entitled to as against non-riparian takers is the ordinary and usual flow of the stream. There is no good reason for saying that the greatly increased flow following the annually recurring fall of rain and melting of snow in the region about the head of the stream is any less usual or ordinary than the much diminished flow which comes after the rains and the melted snows have run off.

Perhaps other considerations should apply where a river, in times of heavy flow, runs over its banks in such manner that large volumes of water leave the stream and spread over adjoining lands to an indefinite extent, there to stagnate until they evaporate or are absorbed by the soil. But the evidence of respondent, and this was the evidence on which the court below acted, fails to show that the water which defendant seeks to divert was such "vagrant water." The evidence of respondent was to the effect that at all seasons the water of the Fresno River, even though overflowing the banks of the channel in which it flowed during the dry season, formed a single and continuously flowing stream.

The argument that the method of irrigation adopted by plaintiff, i.e., that of having the annual increased flow of the river spread over its lands, was not a reasonable use of the water can have no weight in this case. The doctrine that a riparian owner is limited to a reasonable use of the water applies only as between different riparian proprietors. As against an appropriator who seeks to divert water to non-riparian lands, the riparian owner is entitled to restrain any diversion which will deprive him of the customary flow of water which is or may be beneficial to his land. He is not limited by any measure of reasonableness. If any doubt ever existed on this point, none can remain since the recent decision of this court in AnaheimUnion Water Co. v. Fuller, 150 Cal. 327, [88 P. 978]. The cases relied on to show that the riparian owner is entitled to only a reasonable use of the water were all cases of controversies between owners of different parcels of land riparian to the same stream.

Virtually the same point is presented by the argument that plaintiff is not limiting itself to the most economical manner of using the water. This is not an objection which may be raised by an appropriator who seeks to divert water of the stream to non-riparian lands.

It is argued that unless appropriators are permitted to divert and store for future use water which would otherwise run into the sea and be wasted, there will be a failure to make the most beneficial use of the natural resources of the state and that riparian owners should not be permitted to obstruct the development of these resources. It may be that, if non-riparian owners are permitted to intercept the winter flow of streams, in order to irrigate non-riparian lands or to develop power, the water so taken will permit the cultivation of more land and benefit a greater number of people than will be served if the flow continues in its accustomed course. But the riparian owners have a right to have the stream flow past their land in its usual course, and this right, so far as it is of regular occurrence and beneficial to their land is, as we have frequently said, a right of property, "a parcel of the land itself." Neither a court nor the legislature has the right to say that because such water may be more beneficially used by others it may be freely taken by them. Public policy is at best a vague and uncertain guide, and no consideration of policy can justify the taking of private property without compensation. If the higher interests of the public should be thought to require that the water usually flowing in streams of this state should be subject to appropriation in ways that will deprive the riparian proprietor of its benefit, the change sought must be accomplished by the use of the power of eminent domain. The argument that these waters are of great value for the purposes of storage by appropriators and of small value to the lower riparian owners defeats itself. If the right sought to be taken be of small worth, the burden of paying for it will not be great. If, on the other hand, great benefits are conferred upon the riparian lands by the flow, there is all the more reason why these advantages should not without compensation, be taken from the owners of these lands and transferred to others.

On the other points raised by the appellant we have nothing to add to what was said in the Department opinion.

The order is affirmed.

Lorigan, J., Angellotti, J., Hall, J., and Chipman, J., concurred.

Beatty, C.J., dissented.

NOTE. — Justice Hall, one of the justices of the district court of appeal for the first appellate district, participates herein pro tempore, in place of the late Justice McFarland, who, at the time of the oral argument was unable to act by reason of sickness; and, Justice Shaw being disqualified, Justice Chipman, one of the justices of the district court of appeal for the third appellate district, participates herein pro tempore. Both justices participate herein pursuant to section 4 of article VI of the constitution, and an order filed August 4, 1908, pursuant thereto.

The following is the opinion rendered in Department Two, October 2, 1907, referred to and adopted in the foregoing opinion in Bank.