City of Fresno v. Fresno Canal & Irrigation Co.

— This action was brought by the city of Fresno in its corporate capacity to obtain a decree abating as a nuisance a certain ditch or canal, owned by the Fresno Canal and Irrigation Company, and which runs through parts of certain streets of said city. The Fresno Milling Company, who had purchased water from the ditch of the other defendant, and *181 had built a large flouring mill on the banks of the canal, was also made a party defendant. The court declared the canal a n uisance per se, and ordered it to be entirely abated, that is, filled up and entirely destroyed. From the judgment and from an order denying a new trial, said defendant, the Fresno Milling Company, appeals.

The said canal was constructed, at great expense, more than five years before the incorporation of said city; the mill of the milling company was erected at an expense of nearly one hundred thousand dollars; other expensive and costly mills have been erected upon the banks of the canal, and are operated by its waters; and the canal after leaving the city distributes water for the irrigation of many farms. There are, therefore, many equitable considerations in favor of defendants; and such large properties…