242 IRRIGATION INVESTIGATIONS IN CALIFORNIA. 



nothing by its action in so far as its claim of right by reason of diversion of water from San Joaquin 

 River is concerned ; and 



(2) That judgment in favor of Miller & Lux, and intervener Mowrey, be entered against 

 defendants, enjoining them from diverting any water out of the San Joaquin River; and 



(3) That judgment he entered in favor of the San Joaquin and Kings River Canal and Irrigation 

 Company, in so far as its right as a riparian owner in this action is concerned, enjoining each and all 

 of the defendants from diverting any water out of San Joaquin River. 



(4) Tliat each party pay its own costs incurred herein. 



An act of Congress of the j'ear 1890 makes it unlawful to build any dam or weir, 

 or any other structure which shall interfere with navigation, across or in a navigable 

 river unless the permission of the Secretarj' of War be iiist obtained. The plaintiff 

 in this case, the San Joaquin and Kings River Canal and Irrigation Couipan}-, did 

 construct a weir across San Joaquin River just below Fresno Slough in the year 1898, 

 and although this weir has a falling section at one end designed to permit the passage 

 of vessels up and down stream, still the compan}' failed to establish to the satisfac- 

 tion of the court that this new dam, or possibl}' the old one which was in use pre- 

 viously and which also had a falling section, was not an interference with navigation 

 and a public nuisance. The point made bj' Judge Webb in this connection is that a 

 right and a claim can not be founded on a wrong, and therefore the company claiming 

 the right to divert water by means of this illegalh' constructed dam had no right to 

 complain of injury bj' reason of diversion of defendants. It would seem that the 

 court decided that no one has the right to divert water from any navigable stream 

 l)j^ means of a dam or weir which would interfere with navigation. This point in 

 the decision covers broad ground. The riparian rights of the company, and also of 

 Miller & Lux, were apparentlj^ sustained and protected. The course is still left open 

 to the enjoined defendants to bring suit against the company and Miller & Lux to 

 determine the extent of their riparian rights, and thereby to ascertain if sufficient 

 water is not left in the river for the filling of the James Canal. 



In March, 1900, Miller & Lux and the San Joaquin and Kings River Canal and 

 Irrigation Company tiled a complaint against Agnes Borland, setting forth grounds 

 of complaint similar to those in the last suit mentioned (No. 8636), except that the 

 dam and a pumi)ing plant are alleged to have been erected on Fresno Slough, a tribu- 

 tary of the San Joaquin. The questions involved are verj- similar to those in the 

 case last mentioned. The number of the case is 900-i, Fresno County. At the time 

 of submitting this report the defendant had not answered in this complaint. 



Case No. 7969, September, 1897, William Lowrj^ brought suit against the San 

 Joaquin and Kings River Canal and Irrigation Company for damages to a crop of 

 grain belonging to plaintiff, caused, as alleged, by submerging it by the waters 

 backed up b}' defendants' dam across the San Joaquin. The pleadings do not dis- 

 close any questions of water rights or irrigation, but in the trial the proofs were 

 large!}' in that direction. Judgment was rendered for plaintiff for ^20,000 damages. 

 An appeal was taken and the case is now in the supreme court. 



IN THE StrPEBIOB COURT OF IVIADERA COUNTY. 



Madera County was formed from a portion of Fresno County in 1892. and con- 

 sequently the amount of litigation growing out of water claims on the San Joaquin 

 and its trihutiiries, as conducted in this couuty, is comparatively small. 



