Tuolumne Water Co. v. Chapman

Citations

• 8 Cal. 392

Syllabus

<p>A complaint alleging that plaintiffs had, for a long time conveyed water from a stream for mining purposes, by means of a ditch, and had thus acquired a prior right to the enjoyment and use of the water, and were in the peaceable possession thereof, when defendants wrongfully diverted the same, and deprived plaintiffs thereof, and were continuing 'so to do, is sufficient to maintain a prayer for an injunction.</p> <p>A demurrer admits the facts as alleged in the complaint.</p> <p>The allegation in the complaint, that defendants wrongfully claim, some protended and fictitious right to the use of the water, does not prejudice the right of the plaintiffs to the injunction.</p> <p>The diversion of a water-course is a private nuisance.</p> <p>ÍTo equitable remedy can be had for a mere past diversion of a water-course ; but when' the injury is continuing, relief may appropriately be sought in equity.</p> <p>There is no occasion that the plaintiff shoúld first establish his title at law, before he can obtain the injunction, when the averment of his right in the complaint is admitted by demurrer.</p>