The main question raised by the demurrer, as fully appears from the record, is as follows: Is this a case in which the Court at Chambers, shall be permitted to exercise purely equitable jurisdiction, thereby leaving it wholly within the discretion of the Judge to determine the various conflicting rights between the parties litigant, as to the use, enjoyment and possession of water, as well as the disputed question of diversion of the same. Also, to require a jury to pass upon and determine such rights on issues specially framed by the Court, or otherwise, or to entirely dispense with a jury, provided such jurisdiction be granted, thereby leaving it within the power of the Judge (sitting as Chancellor,) to enter a decree in direct opposition to any verdict that might be rendered by a jury. (See Gray v. Eaton et al., Oct. T. 1855.)
It is strongly argued, by counsel for plaintiffs, that the demurrer of defendants admits every allegation in the complaint. This may be technically true, but still this fact cannot confer the equitable jurisdiction demanded, because it is necessary that the plaintiffs shall establish an undoubted right in a Court of Law, to the use and possession of the property in question, prior to filing this their bill in chancery, wherein they pray for a perpetual injunction against defendants, and it does not appear in the bill of said plaintiffs, that such disputed right has ever been passed upon or determined in a Court of Law.
In this action, as fully appears from the argument of counsel for appellants, the question is not raised as to the granting of an injunction, or the dissolution thereof, and therefore many of the authorities cited by appellants' counsel do not apply to this case. At common law, as well as under the statutes of California, upon sufficient cause shown, by affidavit or otherwise, in an action at law an injunction may issue, the only question being as to the jurisdiction of the Court. But in this action an injunction has been issued, andis prayed to be made perpetual in plaintiff's bill, and defendants cite the following cases, which have been determined in the Supreme Court of this State. (Gates v. Henry Teague et al., Oct. T. 1856; Ritchie v. Dorland, Jan. T. 1856; Gregory v. Hay , 3 Cal. 322; also, Willard's Eq. Jur. 392.)
Where the thing complained of is in itself a nuisance, and there is no doubt as to the plaintiff's right, the Court will interfere to stay irreparable mischief, without waiting the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may, according to circumstances, prove to be so, the Court will await the result of a trial at law, or of an issue awarded by itself. Hence, in case of a dispute as to the right of the enjoyment of portions of the water of a stream for manufacturing purposes, equity ought not to interfere by injunction, unless the right of complaint is capable of clear ascertainment, and then only to prevent irreparable mischief. (Reid v. Gifford, 6 J. Ch. 19; The Attorney-General v. Utica Ins. Co. , 2 Id. 370; ) on motion for an injunction; resisted on the ground, first--that this is not a caseproperly within the jurisdiction of this Court. The Chancellor says:
" I shall confine myself to the consideration of the first point, and on that objection dispose of the case. The application for the injunction is not because it is intended to be merely ancillary to a proceeding at law. The entire and final remedy is sought in this Court. The whole question upon the merits is one of law and not of equity. The process of injunction is too peremptory and powerful in its effects, to be used in the case without the clearest sanction." (Hart v. The Mayor and Councilmen of the City of Albany, 3 Paige Ch. 213.)
The same doctrine is laid down in 7 Barb. 395, Fisk v. Wilber. The Court say: " Courts of Equity have concurrent jurisdiction with Courts of Law, in cases of private nuisance; but it is not every case of nuisance which will authorize the exercise of the jurisdiction.
In rests upon the principle of a clear and undoubted right to the enjoyment of the subject in question, and will only be exercised in a case of strong and imperious necessity, or where the rights of the party have been established at law. It is not the peculiar province of a Court of Equity to construecontracts and conveyances of water-powers, or to ascertain and define the quantity of water granted or reserved thereby. The principle upon which the jurisdiction of a Court of Equity rests, in cases of water-privileges, arises from the preventive which it can afford, in shielding a party from great and irreparable injury which may threaten him; but the rights alleged to be infringed or threatened must be clear, definite, and certain, or capable of being clearly ascertained; otherwise the party should be left to the remedy at law."
JUDGES: Burnett, J., after stating the facts, delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
The demurrer admits the facts as alleged in the complaint. (3 Cal. 323.)
The alleged allegation in the complaint, that the defendants wrongfully claim some pretended and fictitious right to the use of the water does not prejudice the right of the plaintiff to the injunction. (Merced Mining Co. v. Fremont , 7 Cal. 317.)
The diversion of a water-course is a private nuisance. (Willard's E. J. 392; Adams' E. 310; Story's E. J. Sec. 927.)
There can be no doubt of the truth of the proposition, that no equitable remedy can be had for a mere past diversion of a water-course, but where the injury is continuing, relief may be appropriately sought in equity. It is only in equity that future injury can be restrained. Continued diversion of water from a party entitled to it, is such an irreparable injury as a Court of Equity will redress.
But in this case it is insisted by the defendants that the remedy by injunction cannot be maintained, until the plaintiff has established his title by a suit at law.
The only object in establishing title at law, is to show that the right is in the plaintiff. The suit at law is only a means to accomplish a given end. When the end is already obtained, there could be no reason for doing an idle thing. This, the law, as a rational system, never requires to be done. If the title of the plaintiff be conceded, then there can be no need of a trial at law to establish that which is already admitted. (Willard's E. J. 392; 6 How. Pr. 89.)
By the demurrer in this case, the defendants admit the right of plaintiff to the water in the gulch, that they have wrongfully diverted it, and continued to do so, and refuse to desist, under a fictitious claim of right.
It is not a mere fictitious claim of right that will prevent the injunction, Suppose the defendants had stated in their answer that they admitted the right of plaintiff to the use of the water, but also insisted that they had a pretended and fictitious claim to it, then there could have been no necessity of a trial at law under such an admission. Had the defendants answered, denying the right of the plaintiff, and claiming title themselves, then a very different question would have been presented, in reference to which it is not now necessary to express any decided opinion. But it may admit of doubt whether, under our system, where the same Court administers both law and equity, and the distinction in pleading is abolished, the former rule would apply, without qualification.