Opinion
APPEAL from a judgment of the Superior Court of the county of Tulare, and from an order refusing a new trial.
Action by the owner of land to restrain the defendants from maintaining a dam in a stream running through the land, and from interfering with the flow of water. The defendants admitted the construction of a dam, but denied that the channel was a natural water course, and alleged that the water was conducted into the channel by them from a foreign source. The court found that the stream was a natural water course, and granted a perpetual injunction.
COUNSEL:
Brown & Daggett, for Appellants.
Atwell & Bradley, for Respondent.
OPINION
PER CURIAM.
There was evidence to sustain the findings of the court.
If it be conceded that as against a riparian owner below, a person not such may turn into a natural stream water which would not naturally flow therein, and again divert the quantity of water which he led to the stream, the fact that he has conducted some water to it will not authorize him to divert all the water of the stream; and it is for him who has thus interfered with the natural flow to show that he has not taken from the stream more water than he led to it. Otherwise the plaintiff, riparian proprietor, is entitled to an injunction prohibiting the diversion of any water.
Judgment and order affirmed.
Hearing in Bank denied.