Opinion
Rehearing Granted June 24, 1931
Appeal from Superior Court, Shasta County; Walter E. Herzinger, Judge.
Action by William J. Albaugh against the Mt. Shasta Power Corporation. Judgment for plaintiff, and defendant appeals.
Reversed, with directions.
COUNSEL
William B. Bosley, Thomas J. Straub, and Frank R. Devlin, all of San Francisco, Chenoweth & Leininger, of Redding, and Jones & Dall and Athearn, Chandler & Farmer, all of San Francisco, for appellant.
Jesse W. Carter, of Redding, Arthur C. Huston, of Woodland, and Annette Abbott Adams, of San Francisco, for respondent.
OPINION
Mr. R.L. THOMPSON Justice.
This is an appeal from a judgment for damages in the sum of $65,000 for the diversion of the water of Fall river, and from the issuing of an injunction prohibiting the defendant from using any of the water of that stream until the judgment is satisfied. This is a companion case with that of Merton Crum et al. v. Mt. Shasta Power Corporation, 299 P. 822, in which an opinion of this court was this day filed. These two cases were tried upon substantially the same evidence. The same issues are involved in both actions. Upon the authority of the Merton Crum Case, it becomes necessary to also reverse the judgment and direct the modification of the injunction in this case.
The plaintiff in the present action owns 400 acres of farm land situated on the north bank of Pit river, on Pitville pool, opposite the property which is owned by Merton Crum. Upon the authority of the case of Turner v. James Canal Co., 155 Cal. 82, 99 P. 520, 22 L.R.A.(N.S.) 401, 132 Am.St.Rep. 59, 17 Ann.Cas. 823, it may be assumed the plaintiff’s land is technically riparian to Fall river during the lower water period in the summer time. On the theory that the water of Fall river comes in contact with the soil of his land during that period of the year when it is impounded in Pitville pool, he is then entitled to nominal damages for its diversion.
For the reasons assigned in the Merton Crum Case, the damages which were awarded in this case are grossly excessive. The terms of the injunction are also too broad. The plaintiff never actually irrigated his land from water taken from Pitville pool. The water which he used upon his land was taken from Loosley pool and conveyed to his land by means of gravity. Loosley pool is also an enlargement of Pit river. It is situated above Young’s Falls. The water upon which the plaintiff relies for irrigating his land was therefore not disturbed by the diversion of Fall river. The diversion of Fall river never affected his beneficial use of the water of that stream. It is only by virtue of the application of the doctrine of usufructus title to water that his rights were thereby invaded. No actual monetary damage has been shown.
The plaintiff was awarded damages equivalent to a valuation of $162 an acre for all of the land he owns. The evidence discloses the fact that a portion of this ranch was purchased ten years previously for $55 an acre. From evidence of a number of sales of similar land in that immediate vicinity, which ranged from $30 an acre to $100 an acre, it is apparent the amount of damages which was awarded in this case is excessive.
The judgment is therefore reversed, with directions to the trial court to ascertain and render a judgment for nominal damages only. The court is also directed to modify the injunction to conform to the suggestions which are contained in the opinion in the case of Merton Crum v. Mt. Shasta Power Corporation, above referred to; the costs to be paid by the respective parties.