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Show REMEDIES FOR INFRINGEMENT 233 judged, and not until he has been found free from taint does equity proceed to determine whether he has been wronged.202 (6) Injunction against a diversion of water that interferes with the petitioner's accustomed use will be refused if the latter fails to show title to a water right entitled to protection of the courts.203 California.-(I) In this State, the right of the riparian both extends to and is limited to reasonable beneficial use of the water, both present and prospective, under reasonable methods of diversion and use.204 Prohibitory injunctions may issue when damage is threatened.205 According to the California Supreme Court:206 [T]he riparian is entitled to all of the water of the stream, both in the quantity and quality of its natural state, which he is able to put to a reasonable beneficial use, and to be protected in that right by the injunctive processes of the court. But the riparian owner is not entitled to an injunction to control the use of water by an appropriator in the exercise of a right admittedly subordinate but in no way injurious to the riparian right. (2) In the foregoing case, a remedy short of prohibitory injunction was applied as between a riparian owner and the City of San Francisco as an upstream appropriator. Some pollution of the water available to plaintiff riparian occurred by reason of operations of irrigation districts upstream from the riparian but downstream from the city's diversions, but the trial court found on sufficient evidence that the return flow in the river did not yet contain a sufficient concentration of salts to render the water unfit for irrigation on plaintiffs riparian lands. Hence, said the supreme court:207 The alleged "serious and threatening" damage of pollution, in the absence of actual pollution, would not justify the injunction ordered herein, especially when protective measures short of absolute prohibition may, if necessary, be applied by the court. Obviously, if the city's diversions should result in making the water of the river unfit for use at the plaintiffs location, and the release 202Humphreys-Mexia Co. v.Arseneaux, 116 Tex. 603, 612-615, 297 S.W. 225 (1927). 203Miller v.Ballinger, 204 S.W. 1173, 1174 (Tex. Civ. App. 1918). Regarding the recognition of certain "equitable rights" of riparian landowners under what the court called "unprecedented" circumstances, see State v. Hidalgo County Water Control & Improvement Dist. No. 18, 443 S.W. (2d) 728 (Tex. Civ. App. 1969), discussed in chapter 7 at notes 652-661. 204Peabody v. Vallejo, 2 Cal. (2d) 351, 365-368, 40 Pac. (2d) 486 (1935); Tularelrr. Dist. v. Lindsay-Strathmore In. Dist, 3 Cal. (2d) 489, 524-530, 45 Pac. (2d) 972 (1935); Meridian v. San Francisco, 13 Cal. (2d) 424, 444-447, 90 Pac. (2d) 537 (1939). 2O5Smith v. Wheeler, 107 Cal. App. (2d) 451,455-456, 237 Pac. (2d) 325 (1951). 206Meridian v. San Francisco, 13 Cal. (2d) 424, 447, 90 Pac. (2d) 537 (1939). 20713 Cal. (2d) at 451-452. |