Stein Canal Co. v. Kern Island Irrigating Canal Co.

By the Court : The stream of water known in this case as the “ Old South Fork ” issues from Kern River, and from the point where the waters are diverted the stream flows as a direct stream. The waters appropriated by the defendant—the Kern Island Irrigating Canal Company — prior to August, 1874, are to be regarded as the waters of the “ Old South Fork,” and not the waters of Kern River. In August, 1874, the defendant appropriated a portion of the waters of Kern River, and conducted [565] i I \ i j the same by means of a canal to the Old South Fork, from which it was taken out lower down the stream, and so continued to do up to about the spring of 1878, when the waters were conveyed through the canals of the defendant, without uniting the same with the Old South Fork. All the water companies which are joined as plaintiffs, except the Goose Lake Canal Company, appropriated portions of the waters of Kern River prior to the appropriation by the defendant in August, 1874, and, so far as is shown by the record, their right to the portions of the water by them respectively appropriated is superior to that of the defendant. The right of the defendant, based upon its appropriation, is subordinate to that of the several plaintiffs, who had made prior appropriations, and the defendant is not entitled to divert the waters of the river to such an extent that a sufficient amount thereof will not flow down the river to supply the plaintiffs above mentioned the amounts of water by them respectively appropriated before the appropriation by the defendant, in August, 1874. The plaintiffs, other than those last above mentioned, have not made out a case entitling them to an injunction, nor have any of the plaintiffs shown that they are entitled to an injunction, except as against the Kern Island Irrigating Canal Company. The order made on the 1st day of April, 1879, is reversed and cause remanded, with directions to the District Court to modify the preliminary Order for an injunction made and filed by the District Court on the 17th day of March, 1879, so that it shall thereby be ordered and adjudged that the defendant, the Kern Island Irrigating Canal Company, and its officers, agents, attorneys, servants, and employees, and all persons acting in its or their aid, do absolutely refrain and desist, until further order in this case, from diverting, taking, appropriating, or using the waters of Kern River, above the head of the Stein Canal Company’s ditch, described in said complaint, so as to diminish the waters of said river to such an extent that they will not supply to each of the water companies mentioned in the said complaint as plaintiffs, except the Goose Lake Canal Company, the amount of water which it is alleged in the complaint they have the right respectively to appropriate and divert from said Kern [566] River, and that a writ of injunction issue in conformity with such order. Remittitur forthwith.