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Show REMEDIES FOR INFRINGEMENT 231 prevent irreparable damage, or to avoid vexatious litigation or a multiplicity of suits. Where the result of the diversion is an unreasonable diminution of the water supply, equity will intervene to restrain an upper riparian owner; and there would appear to be a stronger reason for such action when the water is diverted by one who is not a riparian owner, or used on nonriparian lands.191 After promising to discontinue his diversions of water to his nonriparian lands, appellee changed his mind; he did not say that he would not divert any more water, but simply that he did not intend to divert again. The court noted that he might conceivably change his mind again. "We do not believe that appellants ought to be put to the trouble and expense of filing a suit each time appellee starts pumping water from that creek, or to risk losing their rights by prescription, and we think the injunction should have been granted."192 In its opinion in this case, the court noted authorities to the effect that an injunction will lie to restrain an unlawful interference with riparian water rights even if the owner contemplates no immediate exercise of such rights, in order to prevent their loss by adverse use. It was then stated that in the Humphrey s- Mexia case193 "it was intimated but not decided that injunction would lie to prevent diversion of water in such manner as would set in motion the statute of limitations, irrespective of actual damage."194 What the Texas Supreme Court said in the Humphreys-Mexia case, in apparently approving the principle but without having to decide it, was that:195 [I] t is obvious that a court of equity would not, even at the suit of a riparian owner, enjoin the diversion of riparian water, unless the complainant was injured thereby, or under circumstances that would reasonably show a hostile and adverse use of sufficient moment to set in motion the statute of limitation, or prescrip- tion.* * * The oil company in this case, however, not being a riparian owner, could not object to the diversion of riparian water, and was not entitled to an injunction to prevent such diversion, if 191 In the latter regard, see chapter 10 at note 710. 192 In a case decided by the old court of civil appeals early in the 20th century, concerning a requested temporary injunction, the only immediate necessity for injunctive relief alleged by a riparian in his petition was that it was required to prevent defendants from obtaining a prescriptive right to the use of water to which the plaintiff was entitled. However, institution of the suit was held by the court to have had this effect, so that no fact stated in the petition required the temporary injunction. Biggs v. Leffingwell, 62 Tex. Civ. App. 665, 667-668,132 S.W. 902 (1910). 193Humphreys-Mexia Co. v.Arseneaux, 116 Tex. 603, 610-611, 297 S.W. 225 (1927). 194 Woody v. Durham, 267 S.W. (2d) 219, 221 (Tex. Civ. App. 1954, error refused n.r.e.). 195 Humphreys-Mexia Co. v.Arseneaux, 116 Tex. 603, 610-611, 297 S.W. 225 (1927). |