The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1891-01-26
BALL, Respondent, !
VS..
kEHL. Appellant.

J
The complaint alleges in substance that the
defendant had by lula ans of . canal appro
priatcti the waters OF y certain creek for the
purpose OF operating n mill owned by him,
and that, subject to The use and right 10 use
said water by the defendant, the plaintiff has
for twelve years last past appropriated and
used adversely to defendant for irrigation,
agricultural and domestic purposes the water
so flowing in said canal, whenever the said
mill was not being run. That upon August
10, 1SSS, while the said mill was not run
ming, the defendant without right deprived
plaintiff OF the use of said water, and has ever
since continued TO deprive Plaintiff of its use,
and that defendant threatens so to deprive
plaintiff of the use of any of said water at all
times, even when said mill is not being run or
operated, nor said water needed for running or
operating the same" The answer of the de-
fendant contained denial of these aleg;i-
tioas.
The court below rendered judgment in favor
OF the plaintiff, and enjoining the defendant
from depriving plaintiff OF the use or flow Of
the water OF said canal except ut such times as
said water may be needed and actually used
for running and operating said mill
From this Judgment and order denying
his motion for new trial the defendant ap
peflls.
The findings do not support the Judgment.
The court finds that the defendant did on the
10th of August, 1883, and while he was not
using the water for the operation of his mill,
deprived the plaintiff of the use of said water
by closing Il certain WaSte-aate, but there is an
entire omission to lind how long such depriva-
ton continued, or whether defendant ever
threatened or threatens 10 continue so TO de-
prive plaintiff of the use of said water at
times when said mill is not being run. or
need for running the same. The allegation
that defenG2ntS act was continuing, and that
he threatened TO continue to deprive plaintiff
of all use OF the water in controversy, was q
material one. Without it, the complaint
would not state facts sufficient to entitle plain
tiff 10 the injunction asked for and obtained.
and the failure OF the court to find upon this
issue rendered by the complaint, is necessarily
fatal to the judgment. This conclusion is sus-
tanned by the ease of Coker VS.. Simpson Cal.
$40. in which ii was said:
'Fhe complaint seems insufficient to sustain
that part of the Judgment granting the in
junction. 1t is simply alleged, in substance,
that defendants, between certain specified
dates diverted the waters of the stream. TO the
plalntlfS damage, III q sum stated. There is
no allegation that the injury was continuing
or threatened to be continued. or likely to be
continued. The circumstances stated are
sufficient for q recovery of damages, but no
equitable facts are alleged to sustain the in
remedial, must be based upon equitable cir
eumstanceS. From all that appears in the
complaint, the injury was only temporary,
and not likely TO continUe."
And so in this case it may be said, from all
that appears in the findings of the court
plaintiffs injury was only temporary and
past, and not likely TO continue at any time in
the future. (s5ee also Tuolumne Water Conn
pany VS.. Chapman, 8 Cal. 1922.
This view renders it unnecessary to pass
upon the sufficiency of the evidence TO sustain
the findings OF the court, as the reversal
OF the Judgment compels a reversal of the
order denying defendants motion for new
trial.
Judgment and order reversed.
DEHAvEN, ].
We concur:
MCFARLAND, J.,
SHARPSTEIN, j.