The herald., 1893-12-07

! be 0ngs to the river just as much as if
the sand had all been cleaned out and
the water allowed to appear above the
! surface.
! Otherwise we have very slender
right of property in waters in these arid
regions, because we all know that the
greater body OF the water very frequently
runs beneath the surface within the
channel of these rivers, and il the water
ceuld be tapped beneath the surface and
all drained ont up to the surface, in
many cases it would take all the water
which flows down the streams. Think.
therefore, that that class of percolatiop
or moving water within the channel in
the bed of the river muet be Withdrawn
from what is considered lercolating
water in the eense that you find it in
the books. | think that what is meant
by percolating water as you find it iD
the books and decisions is tho water that
percolates or trickles through the natural
soil of the hill that has not been depos-
tied in the way Of river bed; but l
think after the water peroolstes through
this natural soil and gets to s stream
and follows down that stream, either OIL
top of the sand or beneath the sand,
that it is then all a part of the stream.
We come now directly to this action.
1t is brought for the purpose OF restrain
ing the continuance of an alleged tres
pass or wrongful taking of the water by
the defendant, alleged to belong to the
plaintiff. 1t is not in the nature of an
action to quiet title in which the title of
the plaintiff is alleged, and also an alle-
cation that the defendant claims some
adverse title, but it is stated that the
Iafa mt hoo mr. rir|,f IN bot hox ko~
yet does take the water wrongiuly.
The city contracted with certain par
ties in 1868 to distribute the water
through the city, instead OF doing that
work itself. These parties then organ
lied a company and assigned this con-
tract to that company-the City Water
company-and that company continued
under the contract for taking and dis
tributing the water that the city, as sue
cessor to the pueblo, might have done.
That contract or lease has been recog-
nizep by the Legislature, however, as
being proper. The city, therefore, does
this work through these parties, or COM
pany, by this contract.
Some years after, in 1886, the stock
holders in the City Water company or
ganized new company, called the
Crystal Syringe company, or this de-
fendant, taking stock in it in the same
proportion as they had in the other,
and selling certain lands and rights of
way to that company, the defendant,
and that company has put down pipes
on that land through which water is
now taken. Why was this new company
organized We have had some brilliant
examples OF corporation jugglery, as it
might be termed. in this state, and per-
haps the city authorities suspected that
there might be something in that line
in the organization of this new COM
pany; that it WAS designed by this new
company to perfect system of it's own,
which, at the expiration of the lease
which had been assigned to the CITY
Water company, could be set up in
hostility to the rigbts Of the city. The
city attorney has evidently imbibed
that euspicion on the party OF the other
city officials, and has displayed a
great deal OF skiIl and ability on
behalf OF the city to try and head off any
injury that might result to the city from
that fact; but inssmuch as the direct
esue made on the part of the defendant
j. that it does not take the water from
tbs Los Angeles river, and inasmuch as
the testimony already 10 shows without
conflict that the defendant corporation
does not take the water, how can this