Miller & Lux v. Enterprise Canal & Land Co.

This is an action to restrain the defendants from diverting water from the San Joaquin River by' means of a certain dam and ditch. The plaintiff Miller & Lux and the intervener, Mowry, assert rights as riparian owners on the river below defendants’ dam. The plaintiff the San Joaquin and Kings River Canal and Irrigation Company asserts rights as the owner of a ditch constructed long prior to that of defendants, and also as a riparian owner on the said river. The court below rendered judgment as prayed for against defendants in favor of Miller & Lux and the intervener, and there is no appeal from such judgment; but the court found that there was no evidence introduced as to the ownership or riparian character of any land of the other

The following facts were averred in the complaint and found by the court: The appellant, the San Joaquin and Kings River Canal and Irrigation Company, was organized as a corporation, for the purpose, among other things, of constructing canals from the San Joaquin River and other streams for the irrigation of agricultural lands, and supplying the inhabitants of cities and towns with pure and fresh water. The San Joaquin River is a natural watercourse arising in the Sierra Nevada Mountains and flowing through the San Joaquin Valley. The appellant “is now, and for upwards of twenty-five years before the commencement of this action has been, the owner and in the possession of a water-ditch or canal known as the San Joaquin and Kings River Canal with the lateral branches thereof,” and appellant “for more than twenty-five years before the commencement of this action has appropriated, taken out of, and diverted from said San Joaquin River, through said canal, six hundred cubic feet per second of the waters of said river, and said water has, when so appropriated, taken out, and diverted, been used by said plaintiffs, or furnished to others to be used for domestic, agricultural, stock, mechanical, manufacturing, and for other useful and beneficial purposes.” The length of the main canal is “upwards of seventy-four miles,” and the appellant has constructed and now uses and maintains “lateral and parallel canals in connection with said main canal, of upwards of one hundred and twenty miles in length, which are in actual use for taking water from the said main canal

During the year 1898—the year before the commencement of this action, which was commenced March 8, 1889—the respondent The Enterprise Canal and Land Company “wrongfully dug away and removed a part of the bank of said San Joaquin River at a point . . . above the said lands of plaintiff and above the said canals of plaintiff, and constructed a large canal or ditch running away from said river at that point and known as the Enterprise Canal and Land Company Canal.” That on or about the first day of March, 1899, the respondents “wrongfully and without right, by means of dams, levees, sticks, earth, and other obstructions by them wrongfully placed in the bed and channel of said San Joaquin River, obstructed the flow of said river and of the water to which plaintiffs were and are entitled as aforesaid, flowing down the plaintiffs’ canals, and to the plaintiffs’ lands,” and caused the same to flow through respondents’

If there were no facts in the case other than those above stated, there would seem to be no plausible reason for denying appellant any relief. Upon these facts the respondents would be simply naked trespassers, taking from the appellant property of immense value which it had owned and possessed for a great many years, and in which respondents had no rights whatever. We learn, however, from counsel that the refusal of the court below to grant appellant any relief was based upon two other findings, to wit: 1. That the San Joaquin River at the point where appellant’s canal taps the same is a “navigable stream”; and 2. That the dam by which appellant diverts the water into its canals obstructs the navigation of said stream. And it is contended that for these reasons the appellant, notwithstanding its long ownership and possession of this valuable and useful property, is without any legal means to protect it against trespassers, and that appellant and a large number of persons the value of whose lands is dependent upon the water furnished by said canals, are at the mercy of any one who without" any right whatever1 may choose to prevent such water from flowing into said canals, and thus practically destroy the entire property of appellant therein.

It is contended by appellant that the two findings last above referred to are not sustained by the evidence; but we do not think that this contention can be maintained. There was no evidence that the stream in question was navigable for several years before the commencement of this action; but there was evidence that a great many years ago boats and barges did at times, at certain seasons of the year, pass up and down it, and as there was no evidence that the condition had changed, it must be held that for the purposes of this appeal the stream is in a legal and technical sense “navigable.” There is, however no evidence that there are any persons desirous of navigating the stream, or that this navigability is of any value.

The position of respondents is, that the obstruction of a navigable stream is unlawful and a public nuisance, and that because appellant’s dam, by which it diverts water into its canal, obstructs the navigability of the San Joaquin River, it cannot have the aid of a court of equity to protect its property against even a mere trespasser. The respondents themselves professedly have no right in the premises; they do not claim that, as persons desirous of navigating the stream, they have sustained any special damage, or any damage at all; they do not assert any right to navigation, but show that they themselves are trying to obstruct navigation by an act which they assert to be unlawful. They stand upon the bald proposition that, although under the general law the appellant has clearly property rights with which they are interfering, appellant is helpless to assert those rights or to stop respondents’ trespasses.

The contention of respondents rests on certain maxims, as that “No one acquires a right of action from his own wrong,” “Out of a base transaction a cause of action does not arise,” “He who comes into equity must come with clean hands,” etc. But these maxims have their limitations, and will not be allowed to work a great injustice and wrong when the alleged unlawful act is entirely unconnected with. any transaction between the parties to the suit. Usually these maxims cannot be successfully invoked where the objectionable act in no way affects the equitable relations existing between the parties. Pomeroy, speaking of the maxim that “He who comes into equity must come with clean hands,” after declaring that the principle “must be taken with reasonable limitation,” says: “The maxim, considered as a general rule controlling the administration of equitable relief in particular controversies, is confined to misconduct in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties and arising out of the transaction; it does not extend

There is a bill of exceptions in the record which was settled by the judge of the superior court before whom the case was tried, after his term of office had expired; and it is contended by respondents that this bill cannot be considered because the part of section 653 of the Code of Civil Procedure which provides that a judge “may settle and sign a bill of exceptions after as well as before he ceases to be such judge” is unconstitutional, as attempting to confer the power to do a judicial act upon one who is not a judicial officer. This power, however, has been continuously recognized and declared by this court for too long a period of time to be now questioned. (Cummings v. Conlan, 66 Cal. 403 ; Leach v. Aitken, 91 Cal. 484 ; Turner v. Hearst, 115 Cal. 394 .) The bar has, no doubt, generally considered the power as valid and acted upon it; and numerous cases are probably here, or on their way to this court, in which the bills of exceptions and statements have been settled as in the case at bar, and great injustice would be done if former rulings on the matter were not adhered to. And although the point of the unconstitutionality of the section may not heretofore have been expressly raised and decided, still we think the principle of the rule of stare decisis should apply, and the settlement of the bill be held to be valid.

We see no necessity for another trial of this ease. The findings show that appellant’s main canal carries six hundred cubic feet of water per second from said stream, and that the “Outside” canal carries three hundred cubic feet per second “of the water of said San Joaquin River,” and upon the findings the appellant is entitled to a judgment against respondents restraining them from any diversion of water from the said river which will interfere with the flowing of said amounts of water respectively into said two canals of the appellant.

Henshaw, J., Shaw, J., Van Dyke, J., Angellotti, J., Lorigan, J., and Beatty, C. J., concurred.

Rehearing denied.