Opinion
Rehearing Granted June 24, 1931
Appeal from Superior Court, Shasta County; Walter E. Herzinger, Judge.
Action by Merton Crum and wife against the Mt. Shasta Power Corporation. Judgment for plaintiffs, and defendant appeals.
Reversed with directions.
COUNSEL
William B. Bosley, Thomas J. Straub, Athearn, Chandler & Farmer, and Frank R. Devlin, all of San Francisco, Chenoweth & Leininger, of Redding, and Jones & Dall, of San Francisco, for appellant.
Jesse W. Carter, of Redding, Arthur C. Huston, of Woodland, and Annette Abbott Adams, of San Francisco, for respondents.
OPINION
Mr. R.L. THOMPSON, Justice.
This is an appeal from a judgment which was entered upon the rendering of a verdict for $20,000 as damages for the diversion of the water of Fall river from land which was deemed to be riparian thereto. The defendant, which is a hydroelectric power company, was also enjoined from using the water of that river until the judgment for damages is satisfied. The respondents, husband and wife, for convenience will be referred to as plaintiff.
Fall river empties into Pit river in the southern portion of Shasta county. The plaintiff owns 116 acres of farm land bordering on the south bank of Pit river, on Pitville pool, a distance of five miles above the mouth of Fall river. This pool is a mere enlargement of the bed of Pit river. Its waters are impounded during the summer months by a lava rock reef which forms a dam across Pit river below the mouth of Fall river. The plaintiff’s land does not border on Fall river, but, upon the contrary, is located a distance of five miles from the nearest point to the last-mentioned stream. The plaintiff’s land is, however, claimed to be riparian to Fall river since this stream contributes a substantial quantity of water which is impounded in this tributary pond and mingles with the body of the water of Pitville pool upon which the land is located.
Pit river is a perennial stream, the source of which is Goose lake in northern California. It flows in a southwesterly direction through Modoc and Shasta counties, emptying into the Sacramento river north of Redding. It has a drainage of 4,000 square miles. In the lower reaches of Pit river it has a maximum flow of 10,000 second feet of water in the winter time. In the hot months of summer, the minimum flow is but 30 second feet. Fall river is a small flashy stream which rises in the foothills of western Shasta county and flows southeasterly, emptying into Pit river at Fall River Mills. Fall river has a maximum of 1,800 second feet of water, with a minimum of approximately 1,000 second feet.
Pitville pool extends from the rock reef above mentioned up stream a distance of 8 ½ miles to Young’s Falls, just south of the town of Pitville. The bed of this pool is substantially level throughout its entire length. The pool has an average depth of 13 ½ feet of water in the summer time. Its width is 145 feet. It covers an area of 150 acres. It then contains 2,000-acre feet of water. It is perpetually filled by the natural flow of water down Pit river, which stream is augmented by water from its upper tributaries, together with a quantity of water which is drained into the pool from the McArthur canal, which conveys water from Tule river. Fall river empties into this pool at a point 500 feet above the rock reef dam across Pit river. It contributes a large quantity of water to this pool, which mingles with and becomes an inseparable part of the corpus of water in Pitville pool. Before and after the diversion of Fall river, the surface of this pool was always maintained at an elevation which caused water to flow over the rock reef below the confluence of these two rivers. The average loss of water from this pool because of evaporation during the months of May to September, inclusive, of each year, is 7.3 vertical inches. There is no evidence of additional loss from seepage. The loss of water from this pool during the dry season, from evaporation and all other causes, is overcome by the minimum flow of 30 second feet which descends Pit river over Young’s Falls at the head of the pond. The maximum quantity of water which was pumped by the plaintiff from this pool for irrigating 20 acres of his land never exceeded a fraction of one second foot of water. There is no evidence that the irrigation of his entire tract of 116 acres of land would require more than one second foot of water during these summer months. The amount of water retained in this pool was never diminished, except temporarily, by the diversion of Fall river. The plaintiff does not complain of a diminution of water from this pool or a lack of water necessary for irrigation or domestic purposes. His claim of damages is based upon the doctrine of usufructuary title to the water of Fall river upon his riparian land which entitles him to the natural flow of the stream regardless of his actual use of the water.
The defendant is a hydroelectric power company. It owns all the land riparian to Fall river from its confluence with Pit river to a point 2 ½ miles up Fall river. It also owns all the land riparian to Pit river from a point 600 feet above the juncture of these streams, down to the power plant which is located 7 miles below the rock reef dam.
In 1920 the defendant began the construction of its dam, penstock, and tunnel at Manning Falls on Fall river one mile above the mouth of this stream, for the purpose of diverting the water therefrom. The plaintiff had knowledge of these operations and of the purpose of the defendant to divert the water. He, however, testified he did not know the diversion of Fall river would affect the level of the water in Pitville pool. He also testified he did not then know his land was riparian to Fall river. He made no protest against the diversion of this stream. From the point of diversion at Manning Falls, the defendant extended its tunnel southerly several miles across the intervening tract of land, connecting it with Pit river at a point 7 miles south of the rock reef dam. At the juncture of this canal with Pit river, the defendant’s power plant No. 1 was constructed. September 30, 1922, the construction work for this enterprise was completed. On that date the defendant first temporarily diverted the water of Fall river through its penstock, tunnel, and power plant for a trial run. This diversion resulted in lowering the water in Pitville pool a depth of 5 feet. The water of Fall river was immediately turned back into its natural channel, and the pool was again filled to its normal depth. The plaintiff does not complain of damages resulting from this temporary diversion of the stream.
There was a break in the western portion of this natural rock reef barrier in Pit river below the mouth of Fall river. This natural break contained a V-shaped crevice some 8 feet in depth. Through this break in the reef a considerable quantity of water was enabled to escape from the Pitville pool. Below the reef there was a series of rapids. Below the dam the elevation of the bed of Pit river dropped 18 feet in a distance of 300 feet of its course. After the water of Pitville pool was lowered by means of the diversion of Fall river, the defendant constructed a substantial concrete apron or dam across the break in the reef connecting the intact portion of the rock ledge with the western shore of Pit river. The V-shaped crevice was closed. The concrete dam was built from a line level with the top of the rock reef to a depth of 9 feet. It contained seven gates to act as spillways in time of flood water. This artificial improvement to the natural rock reef dam effectually impounded the water and restored the pool to its normal depth. The water of Fall river was then again diverted through the defendant’s canal. The permanent diversion of Fall river, however, did not lower the depth of Pitville pool after the concrete wing of the rock reef dam was constructed. The water from this pool continued at all times to flow over the dam. The plaintiff always had access to all the water he required, and to all the water he had ever enjoyed the use of from this pool.
This action was commenced June 4, 1923. The complaint contained two counts. The first cause of action sought injunctive relief to prohibit the diversion of Fall river. The second cause prayed for damages. All of the material allegations of the complaint were controverted. The cause was tried with a jury. A verdict of $20,000 damages was rendered in favor of the plaintiff. Findings were adopted favorable to the plaintiff. A judgment was accordingly entered in his favor for $20,000 damages, and the defendant was perpetually enjoined from diverting any of the water of Fall river unless said judgment was satisfied within sixty days after the same became final. From this judgment the defendant has appealed.
The appellant asserts that certain findings and the judgment are not supported by the evidence. The chief contentions are that plaintiff’s land is not riparian to Fall river, for the reason that the current from that stream does not flow up Pitville pool as far as the location of the land, that the diversion of Fall river has not diminished the water in Pitville pool, and the plaintiff has therefore shown no actual damage as a result thereof, and that the court was without authority to issue an injunction which disregards the defendant’s riparian rights to at least a portion of the water of Fall river.
A vast amount of evidence was adduced at the trial, and much space is devoted in the briefs to the question as to whether the current from Fall river carries any portion of the water of that stream up Pitville pool to the land of plaintiff. The evidence which was offered for the purpose of showing that the current from Fall river actually did convey the water of that stream up to the land of plaintiff, 5 miles above the rock reef dam, is very unsatisfactory. The plaintiff’s theory is that the water of Fall river, which is slightly colder than the water of Pit river, therefore displaces the Pit river water at the bottom of the pool and thus creates a subsurface current which finds its way upstream along the bed of the pond. This theory furnishes no scientific principle which appeals to reason. It was also contended that the water of Fall river is purer and clearer than that of Pit river. No satisfactory experiments were offered by means of which the actual particles of the water of Fall river may be traced to the plaintiff’s land. By neither analysis, color, temperature, nor ingredients may it be reasonably said the identical corpus of the Fall river water was traced to the land of plaintiff 5 miles above the confluence of these two streams. It seems more reasonable to believe that, when the water of Fall river was poured into this reservoir called Pitville pool, it circulated and mingled indiscriminately with the waters contributed thereto from all other sources, so as to equalize the temperature and form the corpus of a miniature lake which was impounded by the barrier of the rock reef dam at its lower extremity.
This solution regarding the effect of impounding the water of Fall river and mingling it in Pitville pool with the water of Pit river during the dry season is amply supported by the findings of the court, which read in part: "When the waters of Fall river flowed into said pool in the state of nature they commingled with the waters of Pit river and flowed up the channel of Pit river to Young’s falls, filling the pool in Pit river between said rock reef and said Young’s falls during the low water season of each year." In accordance with this view, the impounding and commingling of the bulk of the water of Fall river with that of Pit river in Pitville pool during the dry season, regardless of the existence of a current which may actually carry Fall river water up to the lands of the plaintiff, constitute a pond which thereby becomes tributary to Fall river during the dry season, and renders the plaintiff’s land which is situated on Pitville pool riparian to Fall river during that period of time. The findings of the court to the effect that an upstream current does exist in Pit river which carries Fall river water up to the lands of plaintiff are surplusage and harmless.
It may seem like fiction to say that land which is located on a pond formed by a dam in the bed of one stream, may still be riparian to another stream which is five miles distant from this land. While Fall river contributes a substantial quantity of water which mingles with and remains in Pitville pool, this pond may be deemed to be an inlet or arm of Fall river, in spite of the fact that there is no current in the pool by means of which the water of the last-mentioned stream may be actually traced to the locality of the land. It is not essential there shall be a current of the stream which actually washes the shores of plaintiff’s land. It is sufficient if the waters of the respective streams mingle in the same reservoir to form the corpus of the same pool. The pond then becomes a basin which is tributary to both streams. This situation may then make plaintiff’s land riparian to both rivers. The case of Turner v. James Canal Co., 155 Cal. 82, 99 P. 520, 522, 22 L.R.A.(N.S.) 401, 132 Am.St.Rep. 59, 17 Ann.Cas. 823, is authority to this exact conclusion. It is there said: "The right of a riparian owner to the use of water bordering upon his land does not, as plaintiffs contend, arise from the fact that the water is flowing, and that any part thereof taken from the stream is immediately replaced by water from the current above it. It comes from the situation of the land with respect to the water, the opportunity afforded thereby to divert and use the water upon the land, the natural advantages and benefits resulting from the relative positions, and the presumption that the owner of the land acquired it with a view to the use and enjoyment of these opportunities, advantages, and benefits. Duckworth v. Watsonville, etc., Co., 150 Cal. 526, 89 P. 338. Out of regard to the equal rights of others whose lands may abut upon the same water, the law has declared, as will hereafter be more fully shown, that the use of the water for irrigation, so far as it affects the right of others similarly situated, must be reasonable, and must be confined to a reasonable share thereof; but, with this common limitation, the right to use water upon adjoining land applies as well to the water of a lake, pond, slough, or any natural body of water, by whatever name it may be called, as to a running stream. *** We have never heard that riparian rights depended upon the character of the current in the water upon which these rights extend. They exist if the water be an artificial pond made by a dam in a watercourse, as well as when it is an unobstructed running stream."
So long as the bulk of water from Fall river remains impounded in Pitville pool, we may assume, upon the reasoning of the last-mentioned case, that plaintiff’s land is riparian to Fall river.
It must be conceded, however, that the same situation does not prevail in times of flood water during which these two rivers rush down over the dam with mighty velocity at a depth of many feet. It is apparent that under such conditions very little of the water of Fall river remains impounded in the pool. During the season when the flood water and current of Pit river carry Fall river water down over the dam, the plaintiff’s land is not riparian to Fall river. It follows that, while the plaintiff’s land may be riparian to Fall river during times of low water in the summer, it is not riparian to that stream during the season of flood water in the winter months. The injunction is therefore too broad in its terms.
It is true that the defendant in the present case has no authority to divert water from Fall river at a point above its own riparian lands. In the case of Miller & Lux v. Enterprise, etc., Co., 169 Cal. 415, 441, 147 P. 567, 577, it is said: "It is to be remembered that a riparian proprietor’s title to the water begins only when it reaches his land and lasts only so long as it is flowing past his land. Until it reaches his land he has no title whatsoever, and no right other than the protective right to see that the full flow past his land to which he is entitled is not illegally diminished."
But it will be observed the defendant owns all land on both sides of Fall river from a point above the diverting canal in that stream to a point on Pit river below the place where the water is returned to the last-mentioned stream where its power plant is located. It also owns the land riparian to the lower end of the Pitville pool from a point which is 600 feet above the confluence of the two rivers. The defendant has therefore not violated the above rule. That rule has no application here.
The injunction was not issued in the present case to restrain the alleged unlawful diversion of water. It was issued to enforce the payment of the judgment for damages in the sum of $20,000. It may be doubtful whether injunctive relief as a remedy to prevent the continuation of the diversion of the water of Fall river, would be proper under the circumstances of this case, on account of laches on the part of the plaintiff. The defendant began its construction of the penstock, dam, and canal in 1920 for the purpose of diverting the water of Fall river. The plaintiff then had knowledge of these operations and of the defendant’s purpose to divert the water of that stream. The defendant is a public utility corporation engaged in the production of hydroelectric power, which it is compelled by law to furnish to its customers subject to the supervision of the Railroad Commission. It owns all the land riparian to both Fall river and Pit river in the vicinity of the proposed diversion. Its use of the water of Fall river was for a proper riparian and beneficial purpose. Fall River Irr. Dist. v. Mt. Shasta Power Corporation, 202 Cal. 56, 259 P. 444, 56 A.L.R. 264; Seneca Cons. Gold Mines Co. v. Great Western Power Co., 209 Cal. 206, 215, 287 P. 93, 70 A.L.R. 210. The defendant expended large sums of money in this construction work. An injunction prohibiting the use of any of the water from Fall river would greatly cripple this enterprise to the detriment of its business and the injury of its customers. With full knowledge of the progress of this construction work and of the purpose of the defendant to divert the water of Fall river, the plaintiff made no protest against the operations. Nearly two years elapsed, and the work was completed before the plaintiff complained. The only excuse offered by the plaintiff for his failure to protest is that he did not realize his land was riparian to Fall river, or that the diversion of its water would injuriously affect his land. In 3 Kinney on Irrigation and Water Rights, page 2953, § 1616, it is said: "Where the complainant stood by while a development was made for public use, and had suffered it to proceed at large expense to a successful operation, having reasonable cause to believe that it would affect his own water supply, an injunction against the continued use of such waters would be refused." Barton v. Riverside Water Co., 155 Cal. 509, 101 P. 790, 23 L.R.A. (N.S.) 331; Conaway v. Yolo Water & Power Co., 204 Cal. 125, 131, 266 P. 944, 58 A.L.R. 674.
As a matter of fact, the diversion of water from Fall river did not actually affect the land of the plaintiff because it caused no diminution of water in Pitville pool. He had access to as much water after the diversion as he had before that occasion. He never lacked water for irrigation or domestic purposes. Neither as a matter of fact nor of law may the plaintiff be permitted to say he did not know his land was riparian to Fall river. He knew Pitville pool was tributary to Fall river in the dry season because substantially all of its water was impounded in that reservoir. Assuming that, since Pitville pool was tributary to Fall river, therefore the plaintiff’s land became riparian to that stream, the plaintiff may not deny that he knew, as a matter of law, his land was riparian to Fall river or that a diversion of that stream would affect the natural flow of the stream during the dry season, for the reason that the law then makes the water a part and parcel of the land. Under such circumstances a landowner is charged with knowledge that his land is riparian to the upper stream which supplies its tributary, and that a diversion of the water does affect his land. The plaintiff does not rely upon proof of actual damages in the present case. He is asserting his remedy for a diversion of the water which prevents it from flowing in its natural channel to his land, on the theory that the water is a part and parcel of the land. In the case of Herminghaus v. So. Cal. Edison Co., 200 Cal. 81, 112, 252 P. 607, 620, it is approvingly said: "The riparian owners have a right to have the stream flow past their land in its usual course, and this right, so far as it is of regular occurrence and beneficial to their land is, as we have frequently said, a right of property, ‘a parcel of the land itself.’ "
One may not excuse a lack of diligence by a mere plea of ignorance of the law. The plaintiff’s plea of lack of knowledge was therefore unavailing.
The respondent contends that he is entitled to the injunction which was issued in this case to prevent the continued diversion of Fall river by the appellant so that its use of the water of that stream may not ripen into title by adverse possession. The appellant specifically disclaims title to this diverted water by adverse possession. It asserts the right to divert and use this water as a riparian owner thereof for the beneficial purpose of manufacturing hydroelectric power only to the extent that other riparian owners are not in need of the water. Adverse possession must be accompanied with actual use of the water for the statutory period; it must be open, notorious, and exclusive; it must be hostile to the rights of the party against whom it is claimed; it must be under a claim of property right; it must be continuous and uninterrupted. 2 Kinney on Irr. and Water Rights, p. 1876, § 1048; 27 R.C.L., p. 1290, § 201. The appellant’s use of this water was held in the Fall River Irrigation District Case, supra, to be a proper riparian use thereof. Under the circumstances of this case it may not be said the appellant’s diversion of Fall river will ripen into a claim of adverse possession. The injunction is therefore not justified on that ground.
In the case of Pabst v. Finmand, 190 Cal. 124, 130, 211 P. 11, 13, it is said, with regard to adverse possession of water: "In the absence of a showing that the upper owner is using the water under a claim of prescriptive right, the lower owner has the right to presume that such owner is only taking that to which he is entitled as a riparian owner by virtue of his riparian right. *** Even if the upper riparian owner is using all the water of the stream, still, if the lower riparian owner is not then using any and has no desire to do so, such use by the upper riparian owner would not be adverse, and, if continued five years, would not gain him a prescriptive right."
So, also, in the case of Oliver v. Robnett, 190 Cal. 51, 55, 210 P. 408, 410, it is said: "Title by prescription is only gained to the extent to which the rights of the lower riparian owner are interfered with. *** The lower riparian owner *** cannot complain of the use by an upper riparian owner except by showing that the upper owner uses an unreasonable quantity of the stream, having regard to the needs of the lower owner, and, consequently, *** the lower owner cannot enjoin the use by an upper owner unless he alleges such unreasonable use to his injury."
There is no issue in the present case regarding an alleged unreasonable use of water on the part of the appellant, nor involving the partition of water between riparian owners. Adverse possession of the water is not involved in this suit, and the injunction may not be sustained on that ground.
It is true there has been some apparent previous conflict of authority regarding the strict application of the common-law doctrine of usufructus title to water, and it has been declared this rule should be modified in California so that each riparian owner of land may be allowed a reasonable use of his share of the water for beneficial purposes. Turner v. James Canal Co., 155 Cal. 82, 94, 99 P. 520, 22 L.R.A.(N.S.) 401, 132 Am.St.Rep. 59, 17 Ann.Cas. 823; Half Moon Bay Land Co. v. Cowell, 173 Cal. 543, 160 P. 675; Pabst v. Finmand, 190 Cal. 124, 211 P. 11. This doctrine regarding a reasonable use of the water is, however, not applicable to an upper appropriator of water. Miller & Lux v. Madera Canal, etc., Co., 155 Cal. 59, 99 P. 502, 22 L.R.A. (N.S.) 391. The controversy regarding this doctrine is set at rest by the language above quoted in the case of Herminghaus v. So. Cal. Edison Co., 200 Cal. 81, 112, 252 P. 607. This rule is aptly stated in 27 R.C.L., p. 1091, § 30, as follows: "It is the well settled general rule that a riparian proprietor has a right to have the water of a stream flow down to his land as it is wont to run, in its natural mode and course, undiminished in quantity and unimpaired in quality, unless this right has been limited or destroyed by an appropriation and adverse use thereof by some other person, continued sufficiently long to create a right in the adverse holder. This right of the riparian proprietor to the flow of the water is inseparably annexed to the soil, and passes with it not as a mere easement or appurtenant, but as a part and parcel of it. *** It is a private property right in the proprietor within the protection of the constitutional provision that private property shall be forever held inviolate. *** The property consists, not in the water itself, but in the added value which the stream gives to the land through which it flows."
It may therefore be assumed that the plaintiff has a technical property right in the water of Fall river while it is impounded in Pitville pool, upon the border of which his land is riparian, such as will entitle him to maintain an action for the unlawful diversion thereof.
Under California authorities a riparian owner is entitled not only to the undiminished flow of a stream past his riparian lands in its natural course, but he is also entitled to the flow of that stream in a substantially unpolluted and unimpaired condition. It is contended in the present case that the diversion of the water of Fall river caused Pitville pool to become stagnant and thereby developed a growth of weeds and other vegetable matter. While it is true there is some evidence of the presence of weeds, tule, and scum in Pitville pool, we are of the opinion the evidence will not warrant a finding to the effect that this condition was caused by the diversion of Fall river. All that the court finds in this regard is: "That the waters naturally flowing in Pit river by plaintiffs’ said lands during the low water season of each year, without the waters of Fall river are negligible and constitute a stagnant pool of black water unfit for watering of stock or other uses on plaintiffs’ said lands, except for irrigation." This is not a definite finding that the diversion of the water of Fall river caused the pool to become stagnant. Our attention is called to no evidence which will support such a finding. We are of the opinion the record will not warrant the sustaining of the judgment in this case upon the ground that the diversion of the water of Fall river caused the pollution and deterioration of the water of Pitville pool, to the detriment of the plaintiff.
In a rapidly developing state, with a growing population, mighty industries and expansive farms demanding an increased allotment of water, it seems necessary that this ancient common-law rule of usufructus title thereto shall be speedily modified to serve the public. It is incompatible with the demands of a growing populous state that riparian owners shall enjoy this obsolete privilege of watching a stream flow undiminished past his land to the sea, while upper owners are deprived of their reasonable share of water for beneficial purposes. This doctrine is founded upon an unreasonable fiction of law. As Mr. Justice Shaw wisely said in the case of Turner v. James Canal Co., 155 Cal. at page 94, 99 P. 520, 525, 22 L.R.A.(N.S.) 401, 132 Am.St.Rep. 59, 17 Ann.Cas. 823, with respect to this doctrine: "If this supposed rule were strictly enforced against riparian owners, as well as appropriators, the waters of the streams in the state could not be used at all, but would flow to the sea. *** The rule is evidently not suited to the conditions of a dry climate such as we have in this state. *** Each riparian owner has a right to a reasonable use of the water on his riparian land, for the irrigation thereof, and that the so-called common-law right of each to have the stream flow by his land without diminution is subject to the common right of all to a reasonable share of the water."
And the learned author of Kinney on Irrigation and Water Rights, in volume 3, page 2943, says: "We deem the true rule to be that the lower riparian owner seeking the injunction must show some real, material, and substantial damage to justify a court of equity in enjoining an upper claimant from his actual beneficial use of the water. *** Owing to the great need and scarcity of water in this Western country, and the necessity that all of the available water supply be put to some beneficial use or purpose, the courts are rapidly coming to this view."
Appropriate legislation with a view to modifying this rule is therefore imperative. But while it is the law of this state the courts are bound thereby. However, this rule should not be needlessly extended.
The amount of damages which was awarded the plaintiff in this case is grossly excessive. He was deprived of no water for irrigation or domestic use by virtue of the diversion of Fall river. He pumped only a portion of one second foot of water from the pool to irrigate less than 20 acres of land. Since the pool remained at its former elevation so as to overflow the dam at all times, and there was available all the water the plaintiff could use, there was no actual monetary damage which resulted from the diversion. The evidence shows that the plaintiff purchased his entire tract of land in June, 1920, for $14,000. The land is used for grazing purposes and for the raising of alfalfa. There is some evidence that it may be suitable for the production of vegetables. Expert witnesses testified that the market value of the land with an adequate supply of water for irrigation purposes from Pitville pool would be from $250 to $350 an acre, and that a diversion of the water so as to decrease the depth of the pool 4 or 5 feet would result in diminishing the value of the land $200 an acre. The measure of damages for the unlawful diversion of water from land which is riparian to a stream is the difference between the market value of the land before and after the diversion. 26 Cal.Jur. 550, § 794; Seneca v. Great Western Power Co., 209 Cal. 206, 222, 287 P. 93, 70 A.L.R. 210. The hypothetical questions which were propounded to the witnesses were based upon a diminution of the water in Pitville pool by lowering its level 4 or 5 feet in depth. The undisputed facts indicate that the depth of the pool was not decreased except temporarily. This temporary diminution of the water of the pool is not complained of. When the concrete apron at the western end of the natural rock reef dam was completed by the defendant, the pool was immediately restored to its normal depth so that it thereafter continued to flow over the dam. The plaintiff was deprived of no water by virtue of the diversion of Fall river. The hypothetical questions upon which the estimates of damages were based are clearly misleading and erroneous. Objections to these questions should have been sustained. The plaintiff contends that he is entitled to the flow of Fall river into Pitville pool under the same conditions which were provided for by nature. It is asserted the defendant may not defeat the plaintiff’s demand for damages for diverting the water of Fall river, by changing the rock reef dam provided by nature so as to maintain the original depth of the Pitville pool by means of an artificial improvement to the natural barrier. There was no protest against this improvement of the dam. There was no injunction against either the construction or maintenance of this improvement. The evidence is undisputed that it successfully impounds the water and maintains the original depth of the pool. The estimate of damages in the present case was evidently based upon an absence or diminution of the water supply. But no such decrease of quantity or absence of water occurred. The plaintiff may not complain of a mere artificial means of supplying and impounding the water of Pitville pool, so long as he is furnished with an undiminished and uncontaminated supply of water equal to that which he formerly enjoyed. Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 72, 259 P. 444, 56 A.L.R. 264.
It is true that the law will presume the existence of damages, without proof of the fact, as a result of an unlawful diversion of the natural flow of a stream past lands which are riparian thereto; but this is for the purpose of enjoining the unlawful diversion. The law may not presume damages under such circumstances, beyond a nominal amount. This presumption is merely for the purpose of affording equitable relief for the unlawful diversion. The amount of damages which was awarded in this case is not supported by the evidence.
The judgment in this case seems to be contrary to the evidence and in violation of reason and justice. The defendant is a public utility corporation engaged in the production of hydroelectric power, which it is bound to supply to its customers subject to the regulations of the Railroad Commission. It owns all the land riparian to the locality of the rivers involved in this litigation. It has expended large sums of money to develop its enterprise. The plaintiff owns land located upon a pool which is primarily an enlargement of Pit river. The land is situated 5 miles from the confluence of this river with Fall river. By the application of a technical common-law rule of usufructus title, this land is deemed to be riparian to Fall river during a part of the season. There never has been an actual flow of the water of Fall river past the land of plaintiff. It is true that the water of this last-mentioned stream does substantially contribute to the body of the pond upon which this land is located, and remains impounded therein a portion of the year. The diversion of the river has never diminished the amount or substantially impaired the quality of the water in this pool. The plaintiff has used a small amount of the water of this pool for irrigation of a portion of his land during a part of the season. He has always had access to all the water he needed or desired. He permitted the defendant to divert the water without protest. He did not even know his land was riparian to Fall river. It requires the application of a fine-spun theory to even determine that his land is actually riparian to Fall river a portion of the year. The diversion of the water of Fall river did not cost him a dollar. It caused him no added trouble or discomfort. Yet he secured a judgment of damages for more than 40 per cent. in excess of the entire cost of his land which was purchased three years prior thereto. This judgment is not supported by substantial evidence.
We are of the opinion the record, under the circumstances of this case, will sustain no more than nominal damages. The injunction is also too broad and sweeping. Under a showing to the effect that the diversion of Fall river may decrease the body of water which is normally impounded in Pitville pool during a particular season, the plaintiff may be entitled to an injunction so as to maintain the pond at its natural depth on a level with the top of the rock reef dam. Beyond this the injunction should not extend. Its application should be limited accordingly.
The appellant complains of various errors in the admission of testimony, and challenges as erroneous a number of the instructions which were given to the jury at the request of the plaintiff. In view of the foregoing application of the law, and of our conclusions respecting the amount of damages, and the limitation of the injunction, it appears to be unnecessary to pass upon the remaining alleged errors.
The judgment is reversed, with directions to the trial court to ascertain and render judgment for nominal damages only, and to modify the injunction to conform to the foregoing suggestions; the costs to be paid by the respective parties.