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Show REMEDIES FOR INFRINGEMENT 23 7 Injunction or Damages or Both Both Remedies Both an injunction and damages have been obtained in a number of cases, such as where damages are awarded for past injury and future injury is enjoined. Some of these cases have been discussed above. In the early gold mining years in California, awards of damages for past injury, as well as perpetual injunctions against future injurious acts, were made in the same judgment in various cases of impairment of water rights by unlawful interference.224 It was held in Texas that flooding of lands of others without their consent is a direct trespass for which the injured party may have redress in court, not only for damages, but also for abatement of the nuisance.225 In an Oregon case the court stated that it was "clear that the defendants acted without right and that it is a proper subject for injunction at the hands of the court. Having properly taken jurisdiction of the subject-matter, it is right for a court of equity to award damages for the tort of the defendants."226 Some Instances in Which Injunction Not Justified Some cases in which the court concluded that under the circumstances an injunction was not justified have been discussed above. Following are some other instances in which an injunction was said not to be justified. (1) In an early case arising in Montana, the United State Supreme Court held that whether an injunction against interference with an appropriator's water right is justified will depend upon the circumstances of the particular case. The Court said that:227 [WJhether, upon a petition or bill asserting that his prior rights have been thus invaded, a court of equity will interfere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged, whether it be irreme- diable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ™Tortor v. Spring Creek Water & Min. Co., 5 Cal. 395, 397, 399 (1855);Phoenix Water Co. v. Fletcher, 23 Cal. 481, 487 (1863); Wixonv.Bear River & Auburn Water & Min. Co., 24 Cal. 367, 372-373 (1864). 22SRhodes v. Whitehead, 27 Tex. 304, 310, 84 Am. Dec. 631 (1863); Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 612-613, 297 S.W. 225 (1927). SeeHouston Tramp. Co. v. San Jacinto Rice Co., 163 S.W. 1023,1027-1028 (Tex. Civ. App. 1914). ™Dunn v. Henderson, 122 Oreg. 331, 335-336, 258 Pac. 183 (1927). ™Atchison v. Peterson, 87 U.S. 507, 514-516 (1874), affirming 1 Mont. 561 (1872). See Mann v. Parker, 48 Oreg. 321, 324, 86 Pac. 598 (1906). |