The record-union., 1893-04-26
FREgH0'S CANAL.
1t is JudiCiaIIy Declared Not to be a
Nuisance.
The City Thought It Was. and Got
Judgment, But the Supreme Court
Says 1t Was Wrong.

The Supreme Court filed in Deputy
Clerk Govan's Office yesterday its decision
in the case of the City of Fresno plaintiff
and respondent) VS.. the Fresno Canal and
Irrigation Company.
The action was brought by the city of
Fresno in its corporate capacity to obtain
a decree abating as a nuisance certain
ditch or canal owned by the Fresno Canal
and Irrigation Company, and which runs
through parts of certain streets of said
city. The Fresno Milling Company,
which had purchased the water from the
ditch of the other defendant and had
built large Touring mill on the banks of
the canal, was also made a party de-
fendant.
The court declared the canal nuisance
per Sc, and ordered it to be entirely
abated-that is, filed up and entirely de-
stroyed. From the judgment and from
an order denying new trial said de-
fendant, the Fresno Milling Company,
appealed
THE said canal" says the decision,
was constructed at great expense more
than five years before the incorporation
of said city; the mill of the milling COM
pany was erected at an expense of nearly
have been erected upon the banks of the
canal, and operated by its waters; and the
canal, after leaving the city, distributes
water for the irrigation of many farms.
There are, therefore, many equitable con-
slderations in favor of defendants; and
such large properties should not be thus
utterly destroyed. unless such result
necessarily follows from an application of
the rules of the law.
''It appears that in 1874 the land now
composing the city of Fresno, and very
large body of land consisting of many
thousands of acres adjoining it, was the
property OF the Contract and Finance
Company; and that in said year the
agents OF said company visited that To-
callty Tor the purpose of selecting site
for new town or city. They consulted
M. j. Church, who was the President
and Superintendent of the said defend
ant, the Fresno Canal and IrrigationiCom-
pany, as to a proper town site.
They wanted place to which water
could be brought, saying that "a town
without stream of water was no town
at ALL
Church informed them that the place
where the city of Fresno was afterward
located could be more, readily supplied
with water than any other part of the ter
ritory designated, and that he would
pledge himself that his company would
put a stream OF water through the place if
they located town there. Upon that as
surance the town was shortly afterward
located at that place. Atterward the
projectors of the town, fearing that
Church might fail to bring in the water,
offered him inducements of both money
and land to bring it in.
"The ditch was commenced by
Church's company about 1874, and was
completed about 1879 or 1880, the water
being brought into the town through the
ditch in 1880. The Board of Supervisors
of the county were consulted about the
building OF the ditch, although no formal
action was taken by the board upon the
subject.
The company defendant has continu-
ously used the ditch from 1850 to the
present time. The corporation plaintiff,
The city of Fresno, was not incorporated
until October, 1855. This action was not
commenced until December, 1891.
'At the time the ditch was in course of
construction, the defendant was urged
to build it by the persons who then
owned all the property in what is now
the city of Fresno. But in 1886 the owner
of the property made a deed to Fresno
County granting perpetual right of
way to the public streets and alleys of
said proposed town or city. After the
Plaintiff was incorporated, its Trustees by
ordinances and official acts regularly
done, recognized the existence of said
canal. The canal was assessed in 1888
and the city tax paid thereon"
After reviewing the findings of the
lower court, and citing various rulings
of the law, the judgment and order of the
lower court was reversed and new trial
ordered.
The decision was by Justice McFar-
land, and concurred in by Justices De
Haven and Fitzgerald.