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Show REMEDIES FOR INFRINGEMENT 249 When a public use has attached a prohibitory injunction should be granted only in the event that no other relief is adequate. * * * In such cases compensation in lieu of injunction is preferred. * * * The doctrine that intervention of a public use will foreclose the right to an injunction rests not only on estoppel. The doctrine may be applicable even though the aggrieved party be in ignorance of the violation of his rights. In other words, implied dedication to public use is not essential to the operation of the doctrine. Public policy in favor of a continuance of the public use may also be invoked to prevent a prohibitive injunction. * * * When public use has attached for any recognized reason reverse condemnation proceedings may be invoked and applied. No good reason has been advanced why such a proceeding should not be employed in this case. It would appear to be the only appropriate course to pursue.272 (6) The Colorado Supreme Court, in a 1967 case involving injury caused by a State fish hatchery, said:273 Where there is no power on the part of a State agency to condemn private property for a claimed public use, a property owner whose property has been damaged by such agency cannot be held to have commenced an action for "inverse condemnation" when he seeks to recover the damages actually sustained by him. There can be no "inverse condemnation" in a situation where no right exists in a governmental agency to proceed under eminent domain. The plaintiffs, in demanding relief in the form of damages covering the loss sustained by them, are not forced to accept the measure of damages usually applicable to a condemnation case.274 Mandamus A mandamus action is an action to compel a governmental agency or official to take action in a particular regard. 2nHttlside Water Co. v. Los Angeles, 10 Cal. (2d) 677, 687-688, 76 Pac. (2d) 681 (1938). The principle of reverse or inverse condemnation has been discussed or applied in several other California ground water cases. See Katz v. Walkinshaw, 141 Cal. 116,136, 70 Pac. 663 (1902), 74 Pac. 766 (1903); Newport v. Temescal Water Co., 149 Cal. 53l', 538-539, 87 Pac. 372 (1906); Barton v. Riverside Water Co., 155 Cal. 509, 515, 101 Pac. 790 (1909); Miller v. Bay Cities Water Co., 157 Cal. 256, 284, 107 Pac. 115 (1910); Burr v. Maclay Rancho Water Co., 160 Cal. 268, 280, 116 Pac. 715 (1911); Eden Township County Water Dist. v. Hayward, 218 Cal. 634, 640-641, 24 Pac. (2d) 492 (1933); Peabody v. Vallefo, 2 Cal. (2d) 351, 377-379, 383, 40 Pac. (2d) 486 (1935); Hillside Water Co. v. Los Angeles, 10 Cal. (2d) 677, 687, 76 Pac. (2d) 681 (1938); Pasadena v. Alhambra, 33 Cal. (2d) 908, 920-921, 207 Pac. (2d) 17 (1949), certiorari denied, 339 U.S. 937 (1950). ™Game & Fish Comm'nv. Farmers Irr. Co., 162 Colo. 301, 426 Pac. (2d) 562, 566 (1967). 274 Regarding the damages awarded, see the discussion at notes 155 and 162 supra. |
