Vernon Irrigation Co. v. City of Los Angeles

I concur in the judgment and in the opinion adopted by the court. I desire to say, however, that the case of Modoc Land and Live Stock Co. v. Booth, 102 Cal. 151 , cannot be taken as authority for the proposition that a riparian proprietor on an ordinary natural stream cannot, by injunction, restrain an unlawful diversion of the water of the stream, *257 unless he can show actual special damage other than such as thus legally arises from a deprivation of the substance of his estate. To so interpret that case would be to make it overrule every decision of this court upon the subject from the organization of our state government to the present moment. All the Modoc case decides is that, to use the language in the opinion in that case, taken from Pomeroy: “Unless the flow of a stream to the land of a riparian proprietor has been appreciably or perceptibly diminished, he is not entitled to an injunction,” etc. Of course, with respect to a river of the size of Mississippi or the Sacramento, no probable diversion would ever perceptibly diminish the flow of the current. Illustrations drawn from supposed riparian rights in such rivers are scarcely more pertinent than would be…

When this case was originally submitted for decision an opinion was prepared by Mr. Commissioner Temple, which is now adopted by the court:

For the reasons given in the foregoing opinion the judgment and order are reversed and a new trial granted.