Miller & Lux, Inc. v. Enter. Canal & Land Co.

Majority

p. 447

[S. F. No. 6085.

In Bank.

December 20, 1913.]

MILLER & LUX, INCORPORATED, AND THE SAN JOAQUIN AND KINGS RIVER CANAL AND IRRIGATION COMPANY, INCORPORATED, Respondents, v. ENTERPRISE CANAL AND LAND COMPANY, and J. G. JAMES COMPANY, Respondents, and JAMES CANAL COMPANY, and JEFFERSON J. GRAVES and WALKER C. GRAVES Jr., Executors of the Last Will and Testament of Jefferson G. James, Deceased.

Headnote

Water-rights—Diversion by Lower Riparian Proprietor at Point Above His Lands—Water not put to Economic Use.—A lower riparian proprietor is not entitled, as against intervening riparian proprietors and’ without their consent, to divert .waters from the stream at a point above the intervening lands at times when more is carried than is actually put to economic use.

APPEAL from a judgment of the Superior Court .of Fresno County. George E. Church, Judge.

This is an appeal by the defendants James Canal Company and Jefferson J. Graves et al., executors of the last will of Jefferson G. James, Deceased, from certain portions of the judgment that is reviewed in the preceding ease of Miller and Lux, Incorporated, v. Enterprise Canal and Land Company, (S. F. No. 6061), ante, p. 415, [ 147 Pac. 567 ], and the facts

p. 448

and nature of the questions involved are stated in the opinion in that appeal. The two appeals were originally considered together, and on the 20th of December, 1913, an opinion was rendered by the Court in Bank covering both appeals. A rehearing was subsequently granted in the appeal No. 6061, and the publication of that portion of the previous opinion specifically applicable to the present appeal has been deferred until the determination of the appeal No. 6061. The further facts are stated in the opinion of the court.

N. C. Coldwell, and W. C. Graves, for Appellants.

Frank H. Short, and Edward F. Treadwell, for Respondents.

The foregoing statement materially shortens the consideration of this appeal. The nature of it has been outlined. It is a request upon the part of the court to overthrow the decisions previously considered and the decisions of Miller & Lux v. Madera C. & I. Co., 155 Cal. 59 [ 99 Pac. 502 ], and Miller v. Bay Cities Water Co., 157 Cal. 256 , [ 107 Pac. 115 ], and to decree that notwithstanding the injury to the freehold of the respondents worked by the diversion, the appellants may still divert waters from the,San Joaquin River at times when more is carried than is actually put to economic use. This proposition does not present a question of first impression where the action of this court would be free. The proposition has been decided repeatedly against appellants’ contention, and for the reasons given in the foregoing consideration those decisions must be adhered to and this appeal denied.

The portion of the judgment appealed from is affirmed.

Shaw, J., Lorigan, J., Angellotti, J., Sloss, J., and Melvin, J., concurred.

Cases cited

Miller & Lux v. Madera Canal & Irrigation Co. 155 Cal. 59 Cal. 1909-01-02 p. 448
Miller v. Bay Cities Water Co. 157 Cal. 256 Cal. 1910-02-04 p. 448