IRRIGATION FROM SAN JOAQUIN RIVER. 241 



in intervention was also filed bj' one Mowrey, claiming riparian rights on the San 

 Joaquin, through Fresno Slough and other branches, declaring that if the overflow 

 waters of the San Joaquin were diverted into the diteh of the Enterprise Canal and 

 Land Companj' his lands would suffer thereby, through not being annually over- 

 flowed; and further, that any diversion of water from the San Joaquin by defendant 

 would so reduce the flow of the river as to deprive intervenor of water to which he 

 was entitled for the irrigation of his land. This very important suit came up for 

 trial and was submitted on briefs April 10, 1900. The court rendered its decision 

 August 1, 1900, the substance of which is as follows: 



In an action where the plaintiff claims that his rights have been or are likely to be invaded by 

 some unlawful act on the part of defendants it is first necessary for the plaintiff to show that he has 

 the right which he claims to have, and that by the unlawful act of the defendant he has been or is 

 likely to be deprived of those rights. The evidence shows that the plaintiff, the San Joaquin and 

 Kings River Canal and Irrigation Company, has been diverting water from San Joaquin River by 

 means of a dam thrown across the river. The question, then, presented is. Can anybody ever acquire 

 any right to divert water by means of a dam or otherwise out of a navigable stream? It is recognized 

 as a fundamental principle that no one has the right to do anything which will in any way destroy 

 the navigability of any stream. It is my opinion that said company has not acquired any right, by 

 prescription or otherwise, to divert any water from San Joaquin River, and that, having no right, it can 

 not ask the court to prevent some one else from interfering with that which it never possessed, to wit, 

 the right to divert water from San Joaquin River. It is contended by the plaintiff that this question 

 can not be raised in an issue between private parties. It is not an issue raised between the parties in 

 this action, but it is the failure of proof on the part of the plaintiff, said company, to show that ita 

 rights have been or are likely to be invaded by defendant in this action, as it has failed to show that 

 it ever had the right to appropriate w^ter from San Joaquin River. The act of the plaintiff, said 

 company, being unlawful from its inception, it can not found a right on an unlawful act, and I am 

 of the opinion that the plaintiff, the San Joaquin and Kings River Canal and Irrigation Company, 

 is not entitled to recover in this action for any acts complained of on the part of defendants. The 

 plaintiff. Miller & Lnx, a corporation, also complains of the defendant in this action for diverting and 

 threatening to divert the water from San Joaquin River at a point above its lands, which it claims are 

 riparian to said river. The evidence and the stipulation of the parties show that Miller & Lux have 

 large bodies of land which are riparian to said river; and the evidence shows that the defendants 

 have diverted and intend to divert the waters of said river at a point above said land. The defendants 

 claim that the lands of James, one of the defendants, are riparian to the said river, and are above the 

 lands of Miller & Lux, and that the defendants, therefore, have the right to divert sufficient water to 

 irrigate their riparian lands. The evidence shows that the lands claimed to be riparian lie on what is 

 known as Fresno Slough, which is claimed by defendants to be a part of the San Joaquin River; but 

 the evidence shows that it is no part of said river; that it is a channel made from the overflow from 

 Kings River during the flood times, and that none of the lands of defendant James are riparian to 

 the San Joaquin River. It follows, then, that the contention of the defendant must fail on that point. 

 The evidence in this case is insufficient to enable me to say at what stage of the water the defendants 

 may divert water from the river without injury to Miller & Lux. When there is an invasion of any 

 right the presumption of law is that ^n injury has been done, and it devolves upon the defendant to 

 show that by the acta complained of plaintiff has not suffered and will not suffer any injury. In this 

 case there is no question but that the diversion of water from San Joaquin River by defendants has 

 done injury, and it follows that the defendants in this action must show that no injury can accrue to the 

 plaintiffs, Miller & Lux, or to the intervenor, J. J. Mowrey. The defendants having failed to establish 

 that fact, I am of the opinion that Miller & Lux are entitled to a judgment of a perpetual injunction 

 against the defendants in this case; and this applies also to the intervenor, Mowrey, and to the San 

 Joaquin and Kings River Canal and Irrigation Company, in so far as its rights as a riparian owner are 

 concerned in this action. It is therefore ordered that judgment in this case be entered — 



(1) That the plaintiff , \he San Joaquin and Kings River Canal and Irrigation Company, take 



23856— No. 100—01 16 



