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Show 238 PROTECTION OF WATER RIGHTS IN WATERCOURSES 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 the water diverted into the lower ditches, indicated that any injury caused by the defendant was slight and speculative, and concluded that: The injury thus sustained, and which is only to a limited extent attributable to the mining of the defendants, if at all, is hardly appreciable in comparison with the damage which would result to the defendants from the indefinite suspension of work on their valuable mining claims. The defendants are also responsible parties, capable, according to the evidence, of answering for any damages which their mining produces, if any, to the plaintiffs. Under these circumstances we think that there was no error in the refusal of the court below to interfere by injunction to restrain their operations, and in leaving the plaintiffs to their remedy, if any, by an action at law. (2) The same principle was applied in a Texas case in which it was held that the trial court properly denied a temporary injunction compelling the defendant to lower the waters raised by a dam which had destroyed the current that was turning plaintiffs waterwheel. The water supply was not abridged, and the plant could be operated by a gasoline engine at relatively small expense. "The injury to appellants in preventing the operation of the water wheel pending the suit is one that can be readily compensated for in damages, and this injury is small in comparison with the injury to appellee which would flow from granting the temporary mandatory injunction."228 (3) The South Dakota Supreme Court rejected a contention that the trial court, having denied an injunction, had no power to retain the cause for the purpose of awarding damages.229 In this case, by reason of the continuing nature of the injury created by pollution of a river by a city, the record would have supported a decree granting equitable relief; but an injunction is not a remedy which issues as a matter of course-its granting or refusal rests in the 22SKuehler v. Texas Power Corp., 9 S.W. (2d) 435, 437 (Tex. Civ. App. 1928), error refused, 118 Tex. 224, 13 S.W. (2d) 667 (1929). Other Texas cases regarding criteria for issuing temporary injunctions are discussed under "Temporary Injunction," supra. 229Parsons v. Sioux Falls, 65 S. Dak. 145, 152-153, 272 N.W. 288 (1937). The Nebraska Supreme Court indicated that a court of equity having properly taken jurisdiction of a case will retain the case for adjudication of all issues; and an action seeking injunctive and other equitable relief and damages is an action in which a court of equity can take and retain jurisdiction to hear the prayer for damages although failing to grant injunction. Robinson v. Dawson County In. Co., 142 Nebr. 811, 8 N.W. (2d) 179 (1943). But this Nebraska rule was later tempered by the statement that "Equity jurisdiction will not be retained to grant legal relief where no right to equitable relief is established." Gillespie v. Hynes, 168 Nebr. 49, 54-55, 95 N.W. (2d) 457 (1959). |
