City of Fresno v. Fresno Canal & Irrigation Co.

Citations

• 98 Cal. 179
• 32 P. 943
• 1893 Cal. LEXIS 882

Syllabus

<p>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.</p> <p>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.</p> <p>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 construc