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Show 230 PROTECTION OF WATER RIGHTS IN WATERCOURSES Riparian Owners Applicability of injunctive relief.- "Injunction is a proper remedy to a riparian owner whose rights as such have been unlawfully invaded or interfered with."187 In a case involving riparian rights the Washington Supreme Court said:188 While it is perhaps true that the respondent may recover in an action at law such damages as he may be entitled to on account of past injuries, he can hardly be said to have a present legal remedy for the injuries which may and probably will be inflicted upon his property in the future by a continuance of the wrongs complained of. The mere fact that he may bring a separate action for each recurring injury does not prove the adequacy of the legal remedy. Indeed, there is no adequate and effectual remedy from a constantly operating injury save that of prevention. And no court can exercise direct preventive power but a court of equity. It follows, therefore, that the respondent is entitled to have the appellants restrained from further diverting the waters of the creek from his land, and compelled to restore them to their natural channels, unless he has so far waived his rights that it would now be inequitable to enforce them by means of an injunction. Much of the litigation over the injunctive process in relation to riparian rights has been in the courts of Texas and California, in both of which States the modified common law doctrine of riparian rights has been recognized.189 The conflicts and the declarations of principles in these two States will be considered separately, beginning with Texas. A few decisions from a few other States are discussed later under "Injunction or Damages or Both." Texas.- (1) In 1954 a court of civil appeals stated in regard to riparian rights that;190 It seems * * * clear that an injunction will be granted to restrain the wrongful continuing diversion or threatened diversion to Incidentally one of the early holdings in Nevada was to the effect that whereas parties who have separate interests in the waters of a stream cannot unite in an action for damages for its past unlawful diversion, nevertheless they may unite in an action to restrain future diversions. Ronnow v. Delmue, 23 Nev. 29, 30, 33, 41 Pac. 1074 (1895). lf"Kingv. Schaff, 204 S.W. 1039, 1042 (Tex. Civ. App. 1918). i88Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 38 Pac. 147, 150 (1894). 189 A 1967 Texas statute, Tex. Rev. Civ. Stat. Ann. art. 7542a, § 4 (Supp. 1970), has restricted the exercise of riparian rights, as explained in chapter 10 under "The Riparian Right-Measure of the Riparian Right-As Against Appropriators-Unused riparian right." A 1928 California constitutional amendment, Cal. Const, art. XIV, § 3, is discussed later. 190 Woody v. Durham, 267 S.W. (2d) 219, 221 (Tex. Civ. App. 1954, error refused). |
