Rigney v. Tacoma Light & Water Co.

Citations

• 9 Wash. 576
• 26 L.R.A. 425
• 38 P. 147
• 1894 Wash. LEXIS 366

Syllabus

<p>WATER COURSE — WHAT CONSTITUTES — WRONGFUL DIVERSION — INJUNCTION — AMOUNT OF DAMAGE NECESSARY — ESTOPPEL — LACHES.</p> <p>The fact that a stream widens into a marsh or swamp will not deprive it of its character as a natural water course, if it continues its current through the swamp, and finally emerges therefrom in a well defined channel.</p> <p>The permanent diversion of the waters of a stream by a riparian owner for the purpose of supplying a neighboring town with water is unlawful, and may be enjoined by a lower riparian proprietor.</p> <p>Although the actual damage to a riparian proprietor by reason of the diversion of water from a stream flowing over his land may be slight, from a pecuniary point of view, still he is entitled to relief in a court of equity. (Hoyt, J., dissents.)</p> <p>The fact that the complainant in a suit to restrain the diversion of a stream from its natural flow has a right to an action for the recovery of damages does not afford such an adequate and effectual relief at law as to bar recourse to a court of equity, when the diversion is a continuing one, constantly operating to his injury.</p> <p>The fact that a lower riparian proprietor stands by for several years without seeking relief in the courts, after an upper riparian proprietor has wrongfully diverted the waters of a stream, and allows the wrongdoer to construct expensive dams, flumes and conduits to convey diverted waters to a neighboring town, contains none of the essential elements of estoppel.</p> <p>The doctrine of laches or acquiescence cannot be invoked to defeat the application of a lower riparian proprietor for an injunction against the wrongful diversion of the waters of a stream against which he had protested but had instituted no legal proceedings, although the diversion has continued for a period of nine years, and during that time expensive dams and flumes have been erected by the parties wrongfully diverting the stream, as the complainant was not called upon to