Smith v. Stearns Ranchos Co.

—This was a suit for an injunction to restrain the defendants from stopping the flow of plaintiffs’ water in the North Riverside and Jurupa Canal, or depriving the plaintiffs of the enjoyment of their easement therein. A temporary injunction was granted as prayed for, and after the trial the injunction was made permanent, “ provided, however, that said defendant I. D. Rogers may, at any time he may desire, make out and present to each and every of said plaintiffs herein a statement, claim, or bill for and on account of their proportion of the expense of the maintenance and repair of said canal during the times hereinbefore mentioned, eliminating therefrom the charge above named of $135 for abstracting, and that thereafter the said defendant I. D. Rogers may apply to this court to have this decree vacated and set aside as to the injunction hereinbefore granted, and upon sufficient showing to this court that such statement, claim, or bill eliminating said charge for said abstracting has been so made out and presented to plaintiffs, then said defendant I. D. Rogers shall be entitled to have this decree, so far as it grants an injunction against said defendant, vacated and set…

—I dissent from the order deny a rehearing of this cause. The opinion of the court is based upon the ground that the canal company cannot arbitrarily make assessments for the cost of maintaining and operating the works, and enforce payment by shutting off the supply of delinquents. Concede this proposition, and it does not follow that this judgment should be reversed or modified. The judgment of the superior court is not inconsistent with this view. The defendant threatened to shut off the water from plaintiffs if they failed to pay certain assessments. He was temporarily restrained from carrying out this threat, and the question was litigated as to the real amount due from the plaintiffs as their share of the expenses incurred in maintaining and operating the canal. It was found that $135 less was due, in the aggregate, than had been charged. Upon this fact being found, the superior court enjoined the defendant from shutting off the water for failure to pay the assessment bills as presented; but, provided that the defendant might present ^corrected bills for the sums actually due, and if such bills were not paid, he.could move to modify the judgment. In other words, the court…