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Show 232 PROTECTION OF WATER RIGHTS IN WATERCOURSES any. This is so for the reason that the oil company had no justifiable interest in the riparian water.196 (2) A riparian who is interested in the water of a stream apparently would ordinarily have the right to enjoin the diversion of the water thereof to nonriparian land if he is injuriously affected by such diversion.197 The Texas Supreme Court has taken the position that although it is the general rule that a riparian owner has no right to divert his riparian water to nonriparian land, circumstances may exist under which it is lawful to do so-such as where water is abundant and no possible injury could result to lower riparian owners.198 (3) Upper riparian owners have been enjoined from diverting water for irrigation to such an extent as to impair the use of the stream by lower riparians for domestic and stockraising purposes, which were natural uses of water and hence superior to irrigation,199 and also for diverting more water than reasonably necessary for irrigating their riparian lands, where the upstream use resulted in depriving lower owners of water for their own irrigation as well as domestic uses.200 (4) The burden is on those who seek affirmative relief to show, by pleading and proof, that they are entitled to it. If they fail to do this, it is fundamental error to grant a perpetual injunction.201 (5) And to obtain relief in equity, one must do equity-he must come into court with clean hands. Injunction will not be granted if the effect will be to aid the complainant in the continuance of a legal wrong and trespass. Equity does not adjust differences between wrongdoers; the complainant is first 196 Prescription is discussed in chapter 14. See especially the discussion at notes 668-674 regarding Texas. 191Santa Rosa Irr. Co. v. Pecos River Irr. Co., 92 S.W. 1014, 1016 (Tex. Civ. App. 1906, error refused); Lakeside Irr. Co. v. Kirby, 166 S.W. 715, 718 (Tex. Civ. App. 1914, error refused); King v. Schaff, 204 S.W. 1039, 1042 (Tex. Civ. App. 1918); Woody v. Durham, 267 S.W. (2d) 219, 221 (Tex. Civ. App. 1954, error refused). See Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 610-611, 297 S.W. 225 (1927); Biggsv. Leffingwell, 62 Tex. Civ. App. 665, 667-668, 132 S.W. 902 (1910). 19*Texas Co. v. Burkett, 117 Tex. 16, 25-26, 27-28, 296 S.W. 273 (1927); Humphreys- Mexia Co. v. Arseneaux, 116 Tex. 603, 610, 297 S.W. 225 (1927). The court decisions in the Western States have been in some conflict in regard to nonriparian use, as discussed in chapter 10, under "The Riparian Right-Exercise of the Riparian Right-Place of Use of Water-Nonriparian land." 199See Baker v. Brown, 55 Tex. 377, 379-380 (1881); Hall v. Carter, 33 Tex. Civ. App. 230, 233-234, 77 S.W. 19 (1903, error refused); Grogan v. Brownwood, 214 S.W. 532, 537-538 (Tex. Civ. App. 1919); Great Am. Dev. Co. v. Smith, 303 S.W. (2d) 861, 864 (Tex. Civ. App. 1957). 200McKenzie v. Beason, 140 S.W. 246, 247 (Tex. Civ. App. 1911); Stratton v. West, 201 S.W. (2d) 80, 81 (Tex. Civ. App. 1947). 201 McGhee In. Ditch Co. v. Hudson, 85 Tex. 587, 590, 593, 22 S.W. 398, 967 (1893). |