IRRIGATION FROM SAN JOAQUIN RIVER. 243 



An important case, which at the time mj- search was made had not yet been 

 tried, is that of the Madera Canal and Irrigation Companj- v. Miller & Lux. the San 

 Joaquin and Kings River Canal and Irrigation Companj-, and certain individuals. 

 Plaintiff claimed right to use of all waters flowing in Fresno River, and in ceilain 

 branches and tributaries the waters of which have been diverted into the channel of 

 Fresno River, bj' right of prior appropriation and use, said appropriation and use 

 dating back over a period of twenty years. Plaintift' also claims I'iparian rights on 

 Fresno River. Plaintiff states that for some ten 3-ears last past it has concentrated 

 said waters thus claimed at a point in the bed of Fresno River above a certain dry 

 channel or waterwaj' known as Cottonwood Creek, and that said waters have been 

 permitted to flow past said dry channel and on down to the lands irrigated by plain- 

 tiff', the bed of Cottonwood Creek being higher than that of Fresno River. The 

 complaint then charges defendants with lowering the bed of Cottonwood Creek and 

 with removing plaintiff's dam therefrom, in order to divert into the creek a certain 

 portion of the waters of Fresno River flowing past that point. The complaint prajs 

 for an injunction preventing this diversion on the part of the defendants and also 

 asks to be adjudged the owner of, and entitled to the use of, all the waters flowing 

 in the bed of Fresno River. An amendment to the complaint has been filed, setting 

 up the further ground that Cottonwood Creek is a false and unnatural water course 

 and slough. The defendants answer that Cottonwood Creek is a natural water 

 course, and further, that Miller & Lux have riparian rights thereon. Thej- allege 

 that at certain times of the year (probably during floods) a certain amount of water 

 flows from Fresno River into and down said Cottonwood Creek: and they admit 

 that during the year 1899, desiring to divert a certain portion of the waters of 

 said creek and of said river for the purpose of irrigation, they did entei" upon said 

 creek, and did propose to divert said water, and posted a notice to that effect at the 

 intersection of Fresno River and Cottonwood Creek, claiming 25, (XK) miners inches; 

 and admit that thej' did commence to enlarge and improve the channel of Cotton- 

 wood Creek. They denj- that they intended to divert nn\ water from Fresno River 

 which plaintiff has any right to use, and promise that, if permitted to go on with 

 their work, they will not divert any water to which plaintiff is entitled, but merely 

 ask permission to appropriate water in excess of the amount rightfulh' belonging to 

 plaintiff. Miller & Lux filed a cross complaint against plaintiff', claiming right of 

 waj' over and along Cottonwood Creek, and the right to construct a canal along said 

 right of way, and charge that subsequent to its acquirement the plaintiff, Madera 

 Canal and Irrigation Company, entered upon Cottonwood Creek and constructed a 

 dam therein, thus preventing defendants. Miller & Lux. from obtaining any water 

 from Fresno River, and pray that plaintiff' be enjoined from entering on said right 

 of way or constructing any such dam. The Madera Canal and Irrigation Company 

 answered the cross complaint, reiterating its denial that Cottonwood Creek is a 

 natural water course, and declaring that the dam built by it across its mouth was 

 made only in order to restore a portion of its works which had been destroj'ed by 

 defendants. A number of amendments to the complaints and answers have since 

 been filed bv each side. The California Pastoral and Agricultural Company inter- 

 vened in this suit, and claims that it has riparian rights along the lower portion of 

 the Fresno River, and that it claims the natural flow of the river in that locality for 



