Felsenthal v. Warring

The controversy which resulted in-this action arose concerning the right to water flowing in Hopper Creek, in Ventura County, and the asserted right of defendants to reconstruct and maintain a ditch across plaintiff’s land.

Plaintiff owns 137% acres of land riparian to the' creek. Of this tract about thirteen acres are suitable for cultivation. Defendants own lands in the same vicinity, only a small portion of which is riparian to the stream.

[1] In 1870, when plaintiff’s land was still a part of the public domain, defendants constructed a dam in the creek at a place within what is now plaintiff’s private property. At what time the land now owned by plaintiff ceased to be government land does not appear from the record. From an intake in the dam that defendants thus constructed on what is now plaintiff’s property, they diverted water, through a ditch,

In 1914 a section of the ditch was washed away, as well as the bank along which that part of it had been constructed, making it necessary for defendants to rebuild. This flood of 1914 eroded the westerly bank of the stream so that now the bank is some feet farther west of where it previously had been. Shortly after the washout of 1914, but prior to the commencement of the action, defendants commenced the reconstruction of their ditch on plaintiff’s land, and finished the work of reconstruction some time after the action was commenced. Three hundred and fifty feet of this reconstructed ditch defendants constructed along the bank of the creek at a distance of from twenty-five to forty feet west of the old ditch line. The action was commenced while defendants were rebuilding the ditch and before its final reconstruction. At the time of filing the complaint a temporary restraining order was issued. This order was dissolved shortly after the filing of defendants’ answer. So that, before the entry of the final decree, defendants had completed the ditch along the new line, three hundred and fifty feet of which was, as we have stated, from twenty-five to forty feet west of where it formerly had been.

The complaint sets forth two causes of action. In the first, plaintiff seeks a preventive injunction, enjoining defendants from completing the reconstruction of the ditch along the new line—twenty-five to forty feet west of the old line—and a mandatory injunction requiring defendants to place plaintiff’s land in the same condition as before the excavation of the new ditch, which, as we have seen, had been partially reconstructed. when the action was commenced. In his second count, plaintiff seeks to quiet his title to the waters of the creek. The court denied plaintiff any injunctive relief whatever; instead, it entered a decree adjudging defendants to be the owners of an easement over plaintiff’s land for the construction, maintenance, repair, and reconstruction of a ditch “substantially along the line of the present existing ditch”—that is, along the line of the ditch as reconstructed in 1914, twenty-five to forty feet west of the former ditch line. The court likewise enjoined plaintiff from asserting any right or title adverse to such easement and from interfering with the ditch. The decree declares that plaintiff is the owner of two and three-fifths

1. The court erred in denying appellant any injunctive relief and adjudging that respondents have an easement in appellant’s land for the construction, operation, and maintenance of a ditch along the new ditch line. Respondents’ right to maintain a ditch on appellant’s land was the right to continue the ditch that they were enjoying immediately before the flood of 1914. At that time they owned a certain fight of way for a ditch of a certain character, acquired either by prescription or while the land was still a part of the public unoccupied lands of the United States. [2] The right of respondents in regard to appellant’s land, whatever its source, was simply to continue the use thereof which they were enjoying at the time he acquired the land. Prior to the washout of 1914 the right of way had been definitely fixed and located along a certain definite and well-defined line. [3] The previous location of the right of way for the ditch had been as definitely and finally fixed by the acts of respondents as it would have been had the metes and bounds been set forth in an instrument of grant. They had acquired the right to that particular location and no other. The remainder of appellant’s land was his, free from any right of respondents. After the flood of 1914, when they reconstructed their ditch, respondents appropriated for their use different land of appellant. [4] We know of no principle of law that warrants respondents in subjecting to their use another and different portion of appellant’s land without his consent. [5] It is elementary that the location of an easement of this character cannot be changed by either party without the other’s consent, after it has been finally established—whether it has been established by the express terms of a grant or by conduct that gives rise to a prescriptive title. [6] The acquisition of a right of way over one portion of a person’s land, whether by grant or prescription, gives the grantee no right over any other por

Nothing in Ware v. Walker, 70 Cal. 591 , [ 12 Pac. 475 ], is inimical to these views. There the bed of the stream, where used by the plaintiff, could not be beneficially used by the defendants and no land available for any useful purpose whatever was invaded—nothing of any value whatever was appropriated. Having used the bed or channel of the arroyo as a part of his conduit for the water that he was entitled to divert,' just" as he would use an artificial ditch for the same purpose, the plaintiff in that case had the same right to clean out, remove obstructions from and repair the part of his conduit that consisted of the channel bed that he would have had had the whole consisted of an artificial ditch. The stream had become obstructed by the deposits, from natural causes, of gravel in its bed, so as to prevent the flow of water to plaintiff’s ditch; by digging a ditch through the sand bar that had formed in the channel of the arroyo, plaintiff did nothing more of injury to the defendant than if he had removed a number of fallen trees which might have been washed down by the floods of winter, and which had lain across the stream, obstructing the flow of the water and preventing it from entering plaintiff’s ditch.

[7] Respondents assert that, because they have acquired the right to divert water from Hopper Creek at a point of diversion on appellant’s land, they necessarily have acquired, as an incident to that right, a right of way for a ditch over the land; and that, therefore, if the way formerly used for the ditch be destroyed by flood, or other act of God, they may reconstruct the ditch along a new line, provided it be the one that will entail the least injury to appellant’s land. To support this contention they cite section 806 of the Civil Code. By this section it is provided that “the extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.” "Whether respondents’ title to a right of way for a ditch be regarded as one resting upon an express grant from the government under the act of July 26, 1866, [14 Stats. 251], or upon prescription—an im

[9] The right of an appropriator of water upon government land that has since become private property to divert the water at any particular place of diversion, and conduct it to Ms own land, over the land that has passed into private ownership, is the right of a grantee of an easement. As a primary easement it, of course, includes what are sometimes called “secondary easements,” or the right to do such things as are necessary for the full enjoyment of the easement itself, as, for example, the right to enter upon the servient tenement and make necessary repairs. But secondary easements do not give the owner of the primary easement the right to increase the burden upon the servient tenement. “The burden of the dominant tenement cannot be enlarged to the manifest injury of the servient estate by an alteration in the mode of enjoying the former.” (North Fork W. Co. v. Edwards, 121 Cal. 666 , [ 54 Pac. 69 ]. The italics are ours.) [10] The right of

[12] Finally, it is contended that appellant is not entitled to any injunctive relief because an injunction is a matter, not of right, but of grace; and that greater injury will result in awarding than in withholding the injunction. The general principle that, when one without right attempts to appropriate the property of another by conduct which will ripen into an easement, a court of equity will compel the trespasser to undo, so far as possible, what he has wrongfully done, is too well established for discussion. [13] To this general rule there are a few well-recognized exceptions. Thus, it has been held that a court of equity may decline to issue a mandatory injunction where the defendant is engaged in a business that serves the public; or where, by innocent mistake, erections have been placed a little upon the plaintiff’s land and the damage caused to defendant by their removal would be greatly disproportionate to the injury1 of which the plaintiff complains, and the defendant has proceeded with the erection while laboring under an innocent mistake of fact or a hona fide claim of right, and the plaintiff has been guilty of laches. (5 Pomeroy’s Equitable Remedies, sec. 508 ; Szathmary v. Boston etc. Ry. Co., 214 Mass. 42 , [ 100 N. E. 1107 ].) Respondents’ contention is that their ease presents features that bring it within these exceptions to the general rule. But the appellant here was not guilty of laches, and respondents did not complete the reconstructed ditch in good faith. A large

[14] To justify the issuance of an injunction there must be substantial injury. Substantial “injury,” however, does not necessarily involve substantial ‘ ‘ damage. ’ ’ Where a valuable property right exists—no matter how small its value may be—and that right is substantially and materially interfered with by a nuisance caused by the wrongful use of the property by another, if the injury is of a continuing nature, requiring a multiplicity of suits to secure its redress, the injured owner of the right, if he be not himself at fault through laches or otherwise, is entitled to injunctive relief, not as a matter of discretion on the part of the court, but as a matter of right; and his right to this relief is not affected by any comparison of his loss with that resulting to the defendant by reason of the granting of the relief. [15] The rule that a chancellor will refuse to enjoin when greater injury will result from granting than from refusing an injunction has no application where the act complained of is in itself, as well as in its incidents, tortious. In such case it cannot be said that injury would result from an injunction, for no man can be heard to say that he is injured by being prevented from doing to the hurt of another that which he has no right to do. When a suitor has brought his cause clearly within the rules of equity jurisprudence, the relief he asks is demandable ex debito justitiae, and needs not to be implored ex gratia. There can be no. balancing of conveniences when such balancing involves the preservation of an established right which will be extinguished if relief be not granted against one who would destroy it— yea, though the right be but that of a peasant to but a part of his small tenement. (Walters v. McElroy, 151 Pa. 549 , [ 25 Atl. 125 ] ; Evans v. Fertilizing Co., 160 Pa. 209 , [ 28 Atl. 702 ] ; Sullivan v. Jones & L. Steel Co., 208 Pa. 540 , [ 66 L. R. A. 712 , 57 Atl. 1065 ] ; Higgins v. Flemington Water Co., 36 N. J. Eq. 538 ; Bristol v. Palmer, 83 Vt. 54 , [ 31 L. R. A. (N. S.) 887 , and extended note, 74 Atl. 331 ] ; Woodruff v. North Bloomfield Gravel Min. Co., 9 Sawy. 542 , [ 18 Fed. 753 ] ; Weimer v. Lowery, 11 Cal. 104 ; Gregory v. Nelson, 41 Cal. 278 ; Learned v. Castle, 78 Cal. 454 , [ 21 Pac. 11 ] ; Moore v. Clear Lake W. Works, 68 Cal. 146 , [ 8 Pac. 816 ] ; Heilbron v. Canal Co., 75

[16] The obvious distinction between injury and damage —a distinction not always observed when dealing with the question before us—is emphasized by 'Mr. Wood, who, speaking of a man’s right of dominion over his property and the jealous care with which the courts have ever guarded this sacred right, says: “Whatever invades this right is a legal injury, whether damages ensue or not.” (Wood on Nuisances, sec. 783. See, also, secs. 376, 782.) As is said in Learned v. Castle, supra, speaking of an injury to another’s land that is a nuisance per se: “It is an injury to the right, and it cannot be continued because other persons (whether jurors or not) might have a low estimate of the damage which it causes. And especially is this so when the continuance of the wrongful act might ripen into a right in the nature of an easement or servitude. . . . The right to an injunction, therefore, in such a case does not depend upon the extent of the damage measured by a money standard—the maxim, Be minimis, eta., docs not apply.” Though dissenting from the majority decision in Sullivan v. Jones & L. Steel Co., supra, Justice Mitchell was constrained to say that “where a clear legal right is being infringed, I agree that the remedy in equity is as mandatory as in law.”

Respondents have cited a number of cases wher-e equitable relief was refused on the ground that the injury was merely theoretical and the damage small. In so far as these were cases where injunctive relief was refused, it will be found on examination either that the injunction that was refused was an injunction pendente lite—as was the case in McGregor v. Silver King Min. Co., 14 Utah, 47 , [ 60 Am. St. Rep. 883 , 45 Pac. 1091 ]—or that the injunction ivas refused because there was no injury, the land having no value whatever—as was the case in Crescent Min. Co. v. Silver King Min. Co., 17 Utah, 444 , [ 70 Am. St. Rep. 810 , 54 Pac. 244 ], a decision by a divided court. [17] That the doctrine of the balance of convenience, so frequently determinative of the propriety of granting or denying a preliminary injunction, has no application to final decrees after hearing on plenary proofs, is

[18] If it was error to deny appellant a final decree granting him injunctive relief, what shall be said of a judgment that actually adjudges respondents to be the owners of an easement in that part of appellant’s land upon which, as trespassers, they have wrongfully built a portion of their reconstructed ditch? Not only does the decree do this—it goes to the length of enjoining appellant from even asserting any right adverse to such easement. This is tantamount to an injunction enjoining appellant from ever bringing an action at law for the trespass, or from suing to recover the damage, however small, caused to his land by respondents’ unauthorized invasion of his property. Such a judgment is clearly erroneous. The same error likewise inheres in and vitiates the findings. For this reason a new trial is unavoidable.

[19] 2. Appellant complains of that part of the decree which adjudges respondents to be the owners of all the surface waters of the creek up to sixty inches—the capacity of

Adopting the testimony of those witnesses who testified that the duty of water on lands such as appellant’s is one inch to five acres, and finding that appellant owns thirteen acres of arable riparian land, the court found and adjudged him to be entitled to use thereon two and three-fifths inches for irrigation and domestic purposes. In so finding and adjudging the court seems to have ignored entirely appellant’s indubitable right, as a riparian proprietor, to have the stream flow through his land undeteriorated in quality and undiminished in quantity, save as respondents, as appropriators or adverse users, have acquired a superior right to take a definite quantity of water from the stream before it passes from appellant’s land.

Since appellant is a riparian owner, the decree should not have attempted to limit his water right to the right to divert a fixed quantity—two and three-fifths inches—for irrigation and domestic uses. The right of a riparian proprietor in or to the waters of a stream flowing through or along his land is not the right of ownership in or to those waters, but is a usufructuary right—a right, among others, to make a reasonable use of a reasonable quantity for irrigation, returning the sur-. plus to the natural channel, that it may flow on in the accustomed mode to lands below. Use does not create the right; disuse cannot destroy or suspend it. If his needs do not prompt him to make any use of the waters, he still has the right to have them flow on to, and along, and over his land in their usual way, excepting as the accustomed flow may be changed by the act of God, or as the amount of it may be decreased by the reasonable use of other riparian proprietors or prior appropriators, if any there be. (Hargrave v. Cook, 108 Cal. 72 , [ 30 L. R. A. 390 , 41 Pac. 18 ].) The vice of the decree is that it limits appellant’s right to such an amount as he may use for irrigation and domestic purposes upon his thirteen acres of arable riparian lands. He owned 137% acres, all of which was riparian to the stream and included the thirteen acres of irrigable arable land. As between himself and respondents, appellant’s right to the waters of the stream has no limitation, save as it is limited by the superior right of respondents as the owners of an appropriator’s or adverse user’s right. So limited, appellant’s right to take water from the stream—as against respondents’—might be more or less than

[20] Respondents contend that, because the evidence showed the capacity of their ditch to be sixty inches, the court was justified in inferring that sixty inches was the amount reasonably necessary for the beneficial uses to which they applied the water. That, in fixing the extent of respondents’ right, the court proceeded upon the theory that the capacity of respondents’ ditch measures their right to the water of the stream, regardless of whether that amount be greater or less than the amount reasonably necessary for their beneficial uses, is clearly apparent from a consideration of the whole record. In adopting the theory that the capacity of their ditch measures respondents’ right to the water of the stream, the court indubitably erred. The extent of an appropriator’s or adverse user’s right is limited, not by the quantity of water actually diverted, nor by the capacity of his ditch, but by the quantity which is, or may be, applied by Mm to his beneficial uses. (Barrows v. Fox, 98 Cal. 63 , [ 32 Pac. 811 ] ; Smith v. Hawkins, 120 Cal. 86 , [ 52 Pac. 139 ].) An appropriator’s right is limited to such quantity, not exceeding the capacity of his ditch, as he may put to a useful purpose upon his land witMn a reasonable time, by use of reasonable diligence. (Senior v. Anderson, 115 Cal. 496 , [ 47 Pac. 454 ].) A diversion over and above what is reasonably necessary for the uses to which he devotes the water cannot be regarded as a diversion for a beneficial use. He cannot waste. If there is any surplus over and above the water reasonably necessary for his beneficial use, the riparian proprietor below his point of diversion has the

[21] Respondents’ suggestion that, because the evidence shows the capacity of their ditch to be sixty inches, and that they always used the ditch capacity, the court could infer therefrom that sixty inches is reasonably necessary for their beneficial uses, does not impress us as having any force in the face of certain indisputable facts. It may be that, in the absence of any direct evidence to the contrary, a court would be justified in presuming that an appropriator takes no more than his reasonable uses necessitate. But here we have direct-evidence, furnished by respondents themselves, that sixty inches greatly exceeds the amount reasonably necessary for their beneficial uses. Thus, Walter Warring, one of the respondents, testified that thirty inches, constant flow, would be sufficient to irrigate respondents’ lands together with a piece belonging to one Pedleford. Respondents endeavor to make a point of the fact that this witness used the expression “constant flow,” when saying thirty inches would suffice. But the sixty inches awarded to respondents by the decree means sixty inches “constant flow,” or else the decree is fatally uncertain.

As indicating that the court seems to have tried the ease upon the theory that the capacity of the ditch measures respondents’ right, regardless of whether it carried more than was reasonably necessary for their beneficial uses, are the following facts, shown by the record: In the early stages of the trial, in reply to a statement by the court, counsel for respondents said: “We claim we are not confined to the necessity”— that is, the amount necessary for respondents’ beneficial uses— “we claim we have a right to use as much as we have been using”; and when, later on in the trial, counsel for respondents asked one of their witnesses how much water, during the irrigation season, respondents took out of the stream, and counsel for appellant objected on the ground that counsel should ask, “How much was reasonably necessary for them to take?” the court instead of sustaining, overruled the objection. It was a proper objection, and should have been sustained. This ruling of the court, coupled with its failure to limit the quantity decreed to respondents to the amount which they themselves testified would suffice for their reasonable needs; convinces us that the court adopted respondents’ theory that the capacity of their ditch measured the quantity of water

[22] We are fully aware that an appellate court will not reverse a finding if there is a substantial conflict in the evidence; but the evidence, in order to raise a conflict, must be such as to present a fair and reasonable ground for a difference of opinion. And where, as here, it is clearly apparent that the court’s finding that respondents are entitled to sixty inches of water is based upon the erroneous, theory that the extent of their right is measured by the capacity of their ditch, and that amount of water has been decreed to them in spite of the testimony of one of themselves that less than half of that quantity would suffice for the reasonable needs of their lands, we have no hesitancy in holding that the finding is within the rule declared in Field v. Shorb, 99 Cal. 661 , [ 34 Pac. 504 ], Smith v. Belshaw, 89 Cal. 427 , [ 26 Pac. 834 ], and In re Coburn, 11 Cal. App. 604 ; [ 105 Pac. 924 ].

The attempted appeal from the order denying appellant’s motion for a new trial was taken after section 963 of the Code of Civil Procedure was amended in 1915, [Stats. 1915, p. 209]. The appeal from that order, therefore, is dismissed.

The judgment is reversed.

Sloane, J., and Thomas, J., concurred.