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Show 452 THE APPROPRIATIVE RIGHT rights entitles him [the downstream appropriator] to both injunctive and legal relief." So said the California Supreme Court in 1942.76 Decades earlier, the United States Supreme Court expressed its views as to the factors that distinguish equitable from legal relief.77 The following quotation follows that given immediately above in connection with material deterioration of quality: But whether, 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 irremediable 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 ordinarily govern a court of equity in the exercise of its preventive process of injunction. The Court reviewed the circumstances relating to the alleged pollution of water diverted downstream and concluded that the injury-which was only slightly if at all attributable to defendants' operations-was scarcely appreciable by contrast with the damage that would result to defendants from indefinite suspension of their work. The defendants were capable of answering for damages that they might cause. Under these circumstances, the lower court was upheld in refusing to interfere by injunction and in leaving plaintiffs to their remedy, if any, by an action of law. (7) Mining versus agriculture. Much of the western law of appropriative water rights was first propounded, expounded, and established in early deci- sions of the California Supreme Court. In the earliest of these decisions, there is an ever-recurring consciousness of the importance of mining in the State and of hydraulic mining water rights. In 1857, the court observed that the judiciary of California had had thrown upon it responsibilities not incurred by the courts of any other State in the Union with respect to a large class of cases-unknown in the jurisprudence of other States-involving the great mining interest dependent upon the use of water.78 The principle of priority of appropriation was applied in the first California cases as between appropriators of water for mining purposes.79 Inevitably 76 Wright v. Best, 19 Cal. (2d) 368, 378, 121 Pac. (2d) 702 (1942). (See also Game and Fish Comm'n v. Farmers In. Co.,___Colo____, 462 Pac. (2d) 562 (1967), discussed above at note 68.) But see Heil v. Sawada, 187 Cal. App. (2d) 633, 637-638, 10 Cal. Rptr. 61 (1960), indicating that an injunction will not be granted if no advantage would result to the plaintiff, but harm would accrue to the defendant. "Atchison v. Peterson, 87 U. S. 507, 515-516 (1874). ntBear River & Auburn Water & Min. Co. v. New YorkMin. Co., 8 Cal. 327, 332 (1857). See Crandall v. Woods, 8 Cal. 136, 141 (1857); Hoffman v. Stone, 7 Cal. 46, 49 (1857);Conger v. Weaver, 6 Cal. 548, 555-556 (1856). 79Eddy v. Simpson, 3 Cal. 249, 252 (1853). |
