Heilbron v. FowLer Switch Canal Co.

Citations

• 75 Cal. 426
• 17 P. 535
• 1888 Cal. LEXIS 563

Syllabus

<p>Appeal — Judgment—Dismissal. —An appeal from a judgment which is not taken within one year from the date of its entry must be dismissed.</p> <p>Riparian Rights—Injunction—Unlawful Diversion — Inconsiderable Injury. — The injury caused to a riparian proprietor by the unlawful diversion of the waters of a stream adjoining his land for a distance of thirty miles cannot be deemed inconsiderable merely because it is incapable of ascertainment, or of being estimated in damages.</p> <p>Id. —Injury Incapable of Ascertainment. —A riparian proprietor is entitled to an injunction to restrain the unlawful diversion of the waters of a stream adjoining his land, although the injury caused by the diversion is incapable of ascertainment, or of being estimated in damages.</p> <p>Id. —Justification of Diversion — Unlawful Appropriation. — A party claiming a certain quantity of the waters of the stream, adversely to the riparian proprietor, under an unlawful appropriation thereof, cannot justify his diversion by showing that there was no appreciable difference in. the quantity of the water flowing in the stream at a time when he took the water, and at a time when he did not.</p> <p>Id. —Upper Riparian Proprietor cannot Authorize Unlawful Diversion. —A riparian proprietor cannot, as against a lower proprietor, authorize a corporation to take water from the stream to be conducted to a distance and there sold.</p> <p>Id. —Tenant may Enjoin Diversion. — A tenant for years of land bordering upon a natural stream may enjoin the unlawful diversion of the waters thereof, the injunction necessarily becoming inoperative at the termination of his estate.</p> <p>Id.—Prior Action when not Pleadable in Abatement.—An action to restrain the diversion of the waters of a stream, and for the recovery of damages, cannot be pleaded in abatement of a subsequent action brought by the same plaintiffs and others against the same defendant, in which no damages are asked, and in which the complaint charges t