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Show 234 PROTECTION OF WATER RIGHTS IN WATERCOURSES of fresh water by the city and its return down the river channel would freshen the water to the required extent, the city could by proper order of the court be required to make such releases without rendering useless the city's increased storage facili- I ties. (3) Before one can invoke the power of a court of equity to restrain a diversion 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.208 The action complained of must be such as to interfere substantially with existing or prospective uses of the water.209 (4) It has been the consistent rule of the California courts, even prior to the impact of the constitutional amendment of 1928,210 that a nonriparian diversion of water that produces a material injury to the riparian owner, or that will do so if allowed to continue, is subject to injunction.211 As expressed in a number of decisions rendered prior to adoption of the amendment, the rule was that where it appeared that the continuance of the act complained of would ripen into an adverse right and thereby deprive the riparian owner of a right of property, it was not necessary before obtaining an injunction to show any actual present damage.212 (5) What the 1938 California constitutional amendment did was to deprive the riparian owner of the right to enjoin an act that caused him no substantial injury, while at the same time assuring him protection in his rights of both present and prospective reasonable beneficial use.213 But an absolute injunc- tion is not justified "where it appears that in any event other forms of relief are available and would be adequate."214 The impact of the 1928 constitutional amendment is discussed in more detail later under "Injunction or Damages or Both-Some State Riparian-Appropriation Situations-California." 2WCarlsbad Mut. Water Co. v. San Luis Rey Dev. Co., 78 Cal. App. (2d) 900, 914, 178 Pac. (2d) 844 (1947). ^Colorado Power Co. v. Pacific Gas & Elec. Co., 218 Cal. 559, 564, 24 Pac. (2d) 495 (1933). 210 Cal. Const, art. XIV, § 3. 2tlPeabody v. Vallejo, 2 Cal. 351, 374-375, 40 Pac. (2d) 486 (1935); Gallatin v. Corning Irr. Co., 163 Cal. 405,417,126 Pac. 864 (1912)\Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 431, 17 Pac. 535 (1888). ! 2X2Pabst v. Finmand, 190 Cal. 124, 132, 2JL1 Pac. 11 (1922); Fresno Canal & Irr. Co. v. People's Ditch Co., 174 Cal. 441, 445446, 163 Pac. 497 (1917); Shurtleffw. Bracken, 163 Cal. 24, 26, 124 Pac. 724 (1912); Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 333-334, 88 Pac. 978 (1907); California Pastoral & Agric. Co. v. Enterprise Canal & Land Co., 127 Fed. 741, 742-743 (S.D. Cal. 1903). 213Meridian v. San Francisco, 13 Cal. (2d) 424,445,447, 90 Pac. (2d) 537 (1939). 2i4SeePeabody v. Vallefo, 2 Cal (2d) 351, 382-383,40 Pac. (2d) 486 (1935). |
