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Show 226 PROTECTION OF WATER RIGHTS IN WATERCOURSES way of an action for damages is not exclusive. A number of court decisions have indicated that such a continuous injury may be enjoined to prevent the wrongful acts from ripening into an adverse or prescriptive right.168 Prerequisites.-(1) With respect to the petition for an injunction, "In order for a party to be entitled to an injunction, his petition must not only state facts showing a prima facie case, but must also negative every reasonable inference, arising from the facts stated, that the plaintiff may not be entitled to the relief sought."169 Again, "It seems to be well established that to be entitled to injunctive relief the petition must specify the relief sought and a court is without authority to grant relief beyond that so specified."170 (2) Before one can invoke the power of a court of equity to restrain a diversion of water above his lands, it is necessary for him to show, first, that there is a wrongful diversion of water above such lands, and second, that the amount wrongfully diverted would be rightfully used by him and that the water is being used or would be used for reasonable and beneficial purposes.171 (3) Furthermore, to authorize a party to invoke "the extraordinary remedy of injunction," the rights which it is designed to protect should be established with certainty.172 If a party who asserts impairment or injury to his customary use of water cannot first establish his right of use, injunction will not be granted.173 same to a beneficial use prior in time to the alleged diversion by the defendant, states a cause of action entitling plaintiff to an injunction restraining futher wrongful diversions by the defendant." 168 See, e.g., Bidleman v. Short, 38 Nev. 467, 471, 150 Pac. 834 (1915); Robison v. Mathis, 49 Nev. 35, 43-44, 234 Pac. 690 (1925); Manney v. McClure, 76 Colo. 539, 541, 233 Pac. 158 (1925). And in some instances it may not be necessary that the appropriator aver or prove actual damages. See Barnes v. Sabron, 10 Nev. 217, 247 (1875)', Robinson v. Bate, 78 Nev. 506, 376 Pac. (2d) 763, 766 (1962). Prescriptive rights are discussed in chapter 14. 169Miller v.Ballinger, 204 S.W. 1173, 1174 (Tex. Civ. App. 1918). See Pecos County W. C. & I. Dist. No. 1 v. Williams, 271 S.W. (2d) 503, 506-507 (Tex. Civ. App. 1954, error refused n.r.e.). ™Scogginsv. Cameron County W. I. Dist. No. 15, 264 S.W. (2d) 169,173 (Tex. Civ. App. 1954, error refused n.r.e.). 171 Carlsbad Mut. Water Co. v. San Luis Rey Dev. Co., 78 Cal. App. (2d) 900, 914, 178 Pac. (2d) 844 (1947). 172Andrews v. Donnelly, 59 Oreg. 138, 148-149, 116 Pac. 569 (1911); Bowen v. Spaulding, 63 Oreg. 392, 396,128 Pac. 37 (1912). "3MUler v. Ballinger, 204 S.W. 1173, 1174 (Tex. Civ. App. 1918). In Blanchard v. Holland, 106 Colo. 147, 154, 103 Pac. (2d) 18 (1940), wherein the evidence clearly showed that plaintiffs had ditch easements for conveying water to their land, the court said that "independent of any statute, equity has jurisdiction to protect easements clearly shown to exist" and that plaintiffs had made out a prima facie case for injunctive relief. "In so holding we do not depart from the rule we have heretofore announced that title to water and rights to its use may not be established between the |
