Full opinion text
McKinstry, J. The question being, Can a private corporation divert the waters of a watercourse, and thereby deprive the riparian proprietors of all use of the same, without compensation made or tendered to such proprietors? held:— 1. The owners of land by or through which a watercourse naturally and usually flows have a right of property in the waters of the stream. 2. This property may be taken for a public use, just compensation being first made, or paid into court. Water to supply “farming neighborhoods” is a public use. And it is for the legislature to determine whether, in the exercise of the power of eminent domain, it is necessary or expedient to provide further legal machinery for the appropriation (on due compensation) of private rights to the flow of running streams and the distribution of waters thereof to public uses. 3. But one private person cannot take his property from another, either for the use of the taker or for an alleged public use, without any compensation paid or tendered. (Const., art. 1, sec. 14.) 4. Riparian owners may reasonably use water of the stream for purposes of irrigation. 5. The court below erred in rejecting certain evidence offered by the appellants. This action was commenced by Charles Lux, Henry Miller, James C. Crocker, and others, as plaintiffs, against James B. Haggin and many individuals and corporations, as defendants. By dismissals and amendments, Lux, Miller, and Crocker became the only plaintiffs, and the Kern River Land and Canal Company the sole defendant. Since the amended complaint was filed the suit has been prosecuted to obtain a decree enjoining the defendant, the Kern River Land and Canal Company, from diverting waters of Kern River, which, it is alleged, had flowed down a watercourse known as Buena Vista Slough, through lands of the plaintiffs described in the complaint, and which (if not diverted) would have continued so to flow. Plaintiffs have appealed from a judgment in favor of the defendant, and from an order denying a new trial. Before proceeding to decide what are the respective rights of riparian proprietors and appropriators of water, or to inquire into certain alleged errors of the court in rejecting evidence offered by the plaintiffs at the trial below, we propose to consider points made by respondent, which, if well taken, demanded an affirmance of the judgment, even though “ the common law ” as to riparian rights now prevails, or formerly prevailed, in this state. 1. As the case was presented in the court below the plaintiffs were not estopped from seeking relief by injunction, by reason of their laches or delay. As a conclusion of law from certain facts found, the court below declared “that the plaintiffs have been guilty of such laches and neglect as disentitle them to any relief in this action.” And it is insisted in this court, by counsel for respondent, “ that plaintiffs have been guilty of such laches as disentitles them to any relief in equity.” First. There are estoppels in pais, as where a defendant is induced to act by the declarations or conduct of a. plaintiff,—which are a defense both at law and equity. Here we cannot discover the elements of such an estoppel. The defendant has acted with full knowledge of all the facts, and, as must be presumed, with full knowledge of the law controlling the rights of the parties. To constitute the estoppel the party claiming the benefit of it must be destitute of knowledge of his own legal rights and of the means of acquiring such knowledge. (Biddle Boggs v. Merced etc. Co., 14 Cal. 279; Stockman v. Riverside, 64 Id. 57; Morrill v. St. Anthony Falls, 26 Minn. 229.) To constitute such an estoppel, it must also be shown that the person sought to be estopped has made an admission or done an act, with the intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, inconsistent with the evidence he proposes to give or the title he proposes to set up; that the other party has acted upon or been influenced by such act or declaration; that the party so influenced will be prejudiced by allowing the truth of the admission to be disproved. (Brown v. Bowen, 30 N. Y. 519; S. C., 86 Am. Dec. 406; Plumb v. Cattaraugus County Mut. Ins. Co., 18 N. Y. 392; S. C., 72 Am. Dec. 526.) In the case before us, the fact relied on as proving the estoppel is that plaintiffs had knowledge of the expensive canals and other works of defendant, while they were in progress, and did not object to them. The bare fact that ditches, etc., were constructed with the knowledge of the plaintiffs, though at great expense, without objection by plaintiffs, is not sufficient to constitute (such) an estoppel. (Stockman v. Riverside, supra.) Second. Where an express statute of limitations applies to a suit .in equity, mere delay to commence the suit for a period less than that of the statute of limitations is never a reason for dismissing the proceeding. And when the defendant relies on mere delay and his own adverse use, the statutory period having expired, he must plead the statute. A party claiming the right to use water by adverse possession for the statutory time must set up the same as a defense in his answer. (American Co. v. Bradford, 27 Cal. 360.) Appellants contend that they had five years after their cause of action accrued within which to bring this action. It may be conceded, however, for all the purposes of this case, that the Code of Civil Procedure limited them to four years. It has been repeatedly decided in this state that section 343 of the Code of Civil Procedure (“An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued”) applies as well to suits in equity as to actions at law. The same effects, positive and negative, follow from section 343 as from other sections of the code prescribing the periods within which actions may and must be commenced. With reference to other limitations, a party cannot be refused a hearing if he shall bring his action within the period named; and as to suits to which section 343 is applicable, mere lapse of time, less than four years, is not ground for defense. Throughout the code suits in equity are called “actions.” Sections 346 and 347 expressly relate to certain suits in equity. Section 307 declares “there is but one form of civil action,” etc. That section does not abolish the distinction recognized by the constitution between law and equity, but it indicates the legislative intent that the subsequent provisions of the code should be applicable to legal and equitable proceedings. The word “hereinbefore” in section 343 has never been held to limit its operation to actions at law, but it has often been held to the contrary. Third. It is said that when a court of equity is asked to exercise its jurisdiction, by means of injunction, it will decline to intervene, when there has been laches, although the statutory period of limitation has not expired It would seem that the discretion of a court of equity in dismissing suits for unreasonable delay (in view of the facts appearing in each particular suit) was originally exercised, and has generally been employed, where there is no statute of limitations directly applicable ; or where the statute has been held generally applicable by analogy,-—courts of equity reserving the power to recognize exceptions to the general rule. And in exercising its prudent discretion in the last class of cases, the court, as the equities demanded, would sometimes dismiss a bill before the corresponding period at law had run, and sometimes entertain a cause long after the running of the time prescribed in the statute. Thus the power to entertain or to refuse to entertain a cause was said to be exercised “ independent of any statute of limitations.” Mr. Wood, in his work on Limitations, remarks: “It is generally held by our courts that, except in the single case of concurrent jurisdiction ” (where the statute, like a statute in terms relating to suits in equity, operates ex vigore suo), “ courts of equity may act by analogy or not, as the ends of justice and the strict equity of the case may require.” (Sec. 59.) It was said by Lord Camden: “From the beginning there has always been a limitation to suits in this court.....But as the court has no legislative authority, it could not properly define the time of bar by a positive rule to an hour, a minute, or a year. It was governed by circumstances.” Sir Thomas Plummer spoke thus of courts of equity: “ They have refused relief to stale demands even when no statutory limitation existed,” etc. (Cholmondeley v. Clinton, 2 Jacob & W. 141.) It is said by Mr. Daniell: “ When there is no positive limitation, the question whether the. court will interfere or not depends upon whether, from the facts of the case, the court will infer acquiescence, confirmation, or release.” (1 Daniell’s Ch. Pr., 560, 561.) And Judge Story says that in cases where equity adopts the statutory rule by analogy, it will often treat the lapse of a less period as a presumptive bar, on the ground of discouraging stale claims, or gross laches, or unexplained acquiescence. (Story’s Eq. Jur., 1920.) The writer on limitations already quoted says that where the claim is purely equitable, and there is no express statute barring it, the rights of the party will be enforced without reference to any statute. (Wood on Limitations, sec. 59.) It might be claimed on principle that inasmuch as the conduct of equity, with respect to laches, etc., and the statute of limitations are both based on public policy, designed to discourage stale demands and to protect against possible loss of evidence, when the legislature— the peculiar exponent of the policy of the state—has spoken (by adopting a positive rule of limitation expressly to suits in equity, in which lapse of time alone is the controlling condition), the limitations applied by equity to cases not previously within the statute should be regarded as no longer existing or enforceable. It must be conceded, however, that the weight of authority is to the effect that where the statute of limitations is directly applicable to a suit in equity, a court of chancery may properly refuse to grant relief by injunction when the plaintiff has assented to the acts complained of and their consequences; and that such assent may, in proper cases, be inferred from the plaintiff’s acquiescence with full knowledge of all the facts. Further, the acquiescence, proving assent, may bar relief in equity, although it may not be accompanied by all the circumstances which would make it an estoppel at law. Each of the words, “delay,” “laches,” and “acquiescence,” has its appropriate meaning. Laches would strictly seem to imply neglect to do that which ought to have been done; acquiescence a resting satisfied with or submission to an existing state of things. Laches (at least with other facts) may be evidence of acquiescence, and acquiescence may be evidence of consent. In the decisions of the reported cases, however, “laches” has sometimes been employed as the equivalent of “mere delay,” and sometimes “laches” or “gross laches” as the equivalent of “ acquiescence.” It is therefore important to consider the context, in connection with which either of these expressions has been used by a judge, in order to ascertain in what sense it is employed. Speaking of the distinction between laches and acquiescence,-Wood remarks: “While the words ‘laches’ and ‘acquiescence’ are often used as similar in meaning, the distinction in their import is both great and important. Laches import a merely passive, while acquiescence implies active, assent; and while, when there is no statutory limitation applicable to the case, courts of equity would discourage laches, and refuse relief after great and unexplained delay, yet, when there is such a statutory limitation, they will not anticipate it, as they may when acquiescence has existed. Laches, in fact, amount only to that inferior species of acquiescence described in the following terms by Lord Kindersley, in Rochdale etc. Co. v. King, 2 Sim., N. S., 89: ‘Mere acquiescence (if by acquiescence is to be understood only abstaining from legal proceedings) is unimportant; where one party invades the right of another, that other does not in general deprive himself of the right of seeking redress merely because he remains passive, unless, indeed, he continues inactive so long as to bring the case within the purview of the statute of limitations.’” (Wood on Limitations, sec. 62.) In cases of concurrent jurisdiction, or where the statute is express, equity will sometimes refuse relief before the statute has run. “But,” says the same writer, “this is only in rare and exceptional cases, where the party can be said to have acquiesced in the wrong of which he complains” (sec. 59); and the same is said in effect in Reed v. West, 47 Tex. 240. It may fairly be deduced from the authorities we have consulted that the acquiescence which will bar a complainant from the exercise in his favor of the discretionary jurisdiction by injunction must be such as proves his assent to the acts of the defendant, and to the injuries to himself which have flowed or can reasonably be anticipated to flow, from those acts. If a degree of acquiescence less than establishes such assent has been regarded in any decision, it will be seen that it has been treated merely as tending to prove some other fact which rendered it inequitable to grant a preventive order. We have tried to look at all the vast number of books referred to by counsel, and have not found any asserted doctrine which directly conflicts with what has just been said. The granting or refusing a decree of specific performance of contracts for the purchase of lands—when there has been more or less delay—depends on principles somewhat different. (Green v. Covillaud, 10 Cal. 317; S. C., 70 Am. Dec. 725; Delevan v. Duncan, 49 N. Y. 485.) When the purchaser has not complied with his contract, he must show why. He must account for his failure in a reasonable manner; must make out a clear case, and show that the relief he asks is equitable. He comes into court with an admission that he has not done all he agreed to do. (Frink v. Parker, 49 N. Y. 1. See also Kirby v. Jacobs, 13 B. Mon. 435; Webber v. Marshall, 19 Cal. 447.) Nor will equity decree specific performance of a contract when its terms and conditions are uncertain or indefinite. (Harnett v. Yielding, 2 Sch. & Lef. 552.) In Ferson v. Sanger, Daveis, 264, Ware, district judge, held that the plaintiff was too late in seeking damages in equity for an alleged fraud in the sale of land. Some of the cases cited relate to applications for a “preliminary” injunction, where, the equities being doubtful, the preliminary order was denied. (Society v. Halsman, 6 N. J. L. 126; Attorney-General v. Sheffield, 3 De Gex, M. & G. 304.) In the last case, Sir Knight Bruce observed: “ What is now done is not to be considered as deciding what will be done at the hearing of this cause, when possibly an injunction may be granted.” And the Lord Chancellor, Gran worth, added, he was not prepared to say it would be discreet for the court to interfere “ interlocutorily ” before the fact had been established, one way or.- the other, by a trial. Afterward, when the application came before the chancellor, he denied it, on the ground that the plaintiff would be subjected to no serious injury by reason of the temporary obstruction of a street by a gas company. And so in Great Western etc. Co. v. The Oxford etc. Co., 3 De Gex, M. & G. 341, Sir Knight Bruce commences by saying: “ It is not now to be determined what order or decree it will be proper to make if these cases shall be before the court for hearing. We are now dealing with interlocutory motions only.” A learned writer on injunctions says: “While dela” may not amount to acquiescence in the wrong for whic, complainant seeks redress, it may yet suffice to preven his obtaining relief by injunction.” (High on Injunctions, sec. 7.) In support of this view he refers to th Attorney-General v. Sheffield, supra, and to Dulin v. Caldwell, 28 Ga. 117. But the Georgia case was an attempt to enjoin referees from making an award, on the ground that the plaintiff (plaintiff also in the cause referred) had been defrauded by reason of the fact that the adverse party in the cause before the referees had not fully answered. The chancellor said the plaintiff ought to ■have made himself acquainted with the contents of the answers, and ought to have excepted to them if insufficient. He had had his day in court. Wood v. Sutcliffe, 2 Sim., N. S., 163, was a suit by a manufacturer to enjoin the owner of dyeing-works above from fouling the water. The plaintiff had stood by for nearly five years while the defendant was constructing and using his works. Before defendant commenced to turn his dye-stuffs into the stream, the sewage of a dense population had rendered the water unfit for plaintiff’s purposes, who had in fact ceased to use it. The fouling of the water was an incident to the occupation of the large population, of which (said the chancellor) the plaintiff could not complain. He therefore suffered, no injury from the acts of the defendant, and by his long acquiescence had assented to them. One cannot read the case of Wicks v. Hunt, John. 372, without perceiving that it did not turn on mere delay, or imperfect acquiescence. The complainant had a complete remedy at law, and the court said the English chancery interfered, notwithstanding the existence of a plain legal remedy, only “by granting an injunction to prevent irreparable damage before a trial, or on a bill of peace after one or more trials at law.” Then there were grave doubts whether the plaintiff had suffered any injury; and Wood, V. C., said: “Under these circumstances, it is impossible to interfere until the right has been tried, whatever the mode of trying it may be.” And the judge_said: “If there was no injury (as was contended) from such floods as occurred during the two and a half years of the plaintiff’s delay, a serious question might arise on the merits how far the possibility of an injury once in twenty or thirty years would justify the court in interfering with defendant’s works.” Equitable relief in many cases depends upon the discretion of the chancellor, and it is true, as said by Bispham, that the laches of the complainant is often “one of the most important elements ” which is taken, into consideration. But laches—in the sense of delay only—is not important, except as it constitutes, with other circumstances, evidence of acquiescence. Meredith v. Sayre, 32 N. J. Eq. 557, was not decided upon mere delay or laches in the sense of delay. The complainants waited for a year after a tramway was completed on a street in front of their lots, and this fact was, in view of the circumstances, treated as evidence of acquiescence. The court said: “The property is in an unimproved part of the city. No inconvenience of any account is inflicted on the plaintiffs by the obstruction,” etc. In the two cases last cited, as in Wood v. Sutcliffe, supra, and other cases, it will appear on examination that the fact that the plaintiff had suffered, and would probably suffer, but slight injury as compared with that to which the defendant would be subjected if the injuncr tion was granted (or the fact that it remained doubtful whether the plaintiff would suffer injury of any account), was considered—with the delay—in reaching the conclusion that acquiescence was proved. It is, perhaps, more probable that one will assent to a slight or temporary than to a grave, serious, and permanent injury. In C. & O. R. R. Co. v. Bobbett, 5 W. Va. 138, a bill to enjoin a diversion of waters was held to be insufficient because it neither alleged the insolvency of the defendant, nor set forth facts showing that a judgment for damages would not be ample redress; and in Huff v. Doylston, 4 Brewst. 333, it is said that injunction will not issue “if the injury be doubtful, eventful, or contingent.” Varney v. Pope, 60 Me. 192, decides that injunction to restrain a nuisance cannot be resorted to unless the right of the complainant has been settled at law, or long enjoyed, or the defendant's acts will result in irreparable injury; Heiskell v. Gross, 7 Phila. 317, that equity will not relieve by injunction, where the right is disputed, until a trial at law, unless the injury is irreparable, and the necessity urgent, and there is no adequate remedy at law. Creighton v. Evans, 53 Cal. 55, was an action at law to recover damages for a diversion. The plaintiff was a riparian proprietor, and as the defendant was not, the court held that, in the absence of proof of damages, the plaintiff was entitled to a verdict for nominal damages.' In Basey v. Gallagher, 20 Wall. 267, no question wás involved as to delay, laches, or acquiescence. Nor was there such a question in Atchison v. Patterson, 20 Wall. 507, which was an issue as between appropriaters on the public lands. The Supreme Court of the United States there said: “Whether a court of equity will interfere by injunction will depend upon the extent and character of the injury alleged, whether it is irremediable in its nature, whether an action at law will afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction.” Sprague v. Steere, 1 R. I. 267, holds that acquiescence may be a bar to the court’s interference by injunction; the cases therein considered are to the same, effect. The order was refused in Bridson v. Beneke, 1 Beav. 1, because the complainant had not proceeded with due celerity to establish his right at law. In Slade v. Sullivan, 17 Cal. 105, the Supreme Court refused to reverse the decree of the District Court dismissing a bill to enjoin miners from working a ravine a short distance in front of the plaintiff’s improvements on the public lands, holding that some of the damage anticipated by the plaintiff was very slight, and the rest “ a mere matter of speculation.” Cotchin v. Bassett, 32 L. J. Ch. D. 286, was an extinguishment of an easement by assent. In Birmingham v. Lloyd, 18 Ves. 515, the plaintiffs sought to restrain the defendants from draining water from their own coal mine. The legal rights of the respective parties were disputed. Lord Eldon refused an interlocutory order for an injunction until the plaintiffs’ right to damages had been established at law. In Parrott v. Palmer, 3 Mylne & K. 631, chancery refused to enjoin, in the face of long-continued acquiescence in the act of defendants and its consequent injuries, but turned the complainant over to his action at law: Maxwell v. Hogg and Hogg v. Maxwell were cross-applications for an injunction order by rival promoters or publishers of magazines, both to be called the “Belgravia. ” Each was refused the order, under circumstances which justified the action of the court. (L. R. 2 Ch. 319.) It appears in Bassett v. Salisbury etc. Co., 47 N. H. 426, that while the injury done to a small portion of the plaintiff’s land (caused by increasing the height of defendants’ dam) was 'trifling, the defendants had expended $850,000 in enlarging their works so that the additional water-power could he put in requisition. Under these circumstances, it was held that the fact that the plaintiff stood by for seven or eight years without objection was sufficient evidence of acquiescence to prevent an intervention by injunction. Grey v. Ohio etc. Co., 1 Grant Cas. 412, was a bill to restrain the defendant from using its railroad across the common in Alleghany City. Lewis, J., said: “The property taken is hardly of any appreciable value; the right of complainant is at least doubtful; his acquiescence until the road was compléted renders it impossible to grant the relief applied for without doing irreparable injury to the defendant, while no benefit would be conferred on the complainant which he could not obtain by an action at law.” Two of the judges dissented, and the injunction was refused “on an equal division.” In Dann v. Spurrier, 7 Ves. Jr. 235, Lord Eldon remarked: “I fully subscribe to the doctrine that this court will not permit a man knowingly, though hut passively, to encourage another to lay out money under an erroneous opinion of title; and the circumstance of looking on is in many cases as strong as terms of encouragement. Still, it must be put upon the party to prove that case by strong and cogent evidence, leaving no reasonable doubt that he acted upon that sort of encouragement.” Mr. Wait observes (6 Wait on Actions and Defenses, 281), that while a court of equity will restrain a party in the use of water in a manner injurious to another, yet the court will not exercise the summary authority “where the right is doubtful, or the facts are not definitely ascertained.” This need not be disputed. He adds: “A complainant who asks the court to restrain by injunction must make a strong prima facie case in support of the title he asserts, and show that he has been guilty of no delay in applying for the interposition of the court.” In support of the whole of this statement he cites Bliss v. Kennedy, 43 Ill. 67; Burnham v. Kempton, 44 N. H. 78; Shields v. Arndt, 4 N. J. Eq. 234. In Bliss v. Kennedy, supra, however, the court, after saying that, by the law of Illinois, the right of a riparian proprietor must ordinarily be established at law before equity will interfere by injunction, holds that equity will restrain until a decision at law only where the plaintiff has not been guilty of improper delay in bringing his action. And the court observes: “We do not think such a case has been made out by the complainants. They, do not allege in their, bill that they have commenced, or are about to commence, legal proceedings to establish their right, but call upon a court of chancery to establish it in the first instance.” The case in 44 N. H. (Burnham v. Kempton) only holds that equity will not take jurisdiction when the parties have a plain and perfect remedy at law, and have neglected to seek it; and the case in Green, that, where the right is doubtful, it should usually first be established at law. Mr. Wait also says that equity will refuse to interfere “when the damage is not serious,” or when it appears that the renewal of the watercourse will still leave it impossible for the party claiming it to derive any benefit from it. “But,” he adds, “if the injuries by diversion are continuous, or the right to continue them is set up and persisted in by the defendant, a court of equity, if the facts be properly established, will interfere by injunction effectually to protect the complainants; and if the diversion of water complained of is a violation of the plaintiff’s right, and may permanently injure that right, and become by lapse of time the foundation of an adverse right in the defendant, there is no more fit case for the interposition of a court of equity, by way of injunction, to restrain the defendant from such injurious act.” (6 Wait on Actions and Defenses, 282.) In Nasser v. Seeley, 10 Neb. 460, the plaintiff “solicited employment ” in the work he afterwards sought to enjoin. This was strong evidence of assent. The Supreme Court of Michigan said: “Except in very clear cases, it is better to leave the parties to their legal remedy in the recovery of damages.” (Hoxsie v. Hoxsie, 38 Mich. 77.) Park v. Kilham, 8 Cal. 77, S. C., 68 Am. Dec. 310, was an action at law to recover certain water and damages, tried by a jury, who rendered a general verdict. The court held that an instruction in the following terms was “ substantially correct ”: “ That if those from and through whom the plaintiffs claim had the prior right to the waters, and they stood by and saw those from whom the defendant derives his title to the ditch, and the right to the waters of the creek, appropriate the water of the creek, at great expenditure of money and labor, under the mistaken idea that the defendant’s vendors were obtaining the first appropriation, and did not inform them of the mistake, they, plaintiffs’ vendors, and the plaintiffs who claim under them, are estopped from setting up their prior right at this time.” In the light of the subsequent decisions, it can scarcely be claimed that the facts recited in the instruction constituted an equitable estoppel which could be relied on as a defense at law. It may be that the defendant had the better right. In fact, the defendant’s grantors seem to have appropriated the water before the plaintiffs’ grantors even “located ” the mining claim. It does not appear that the plaintiffs’ predecessors ever took actual possession of the mining claim; and even if the location of the claim preceded the defendant’s appropriation, it does not appear that the manner of the location was such as that defendant’s grantors were bound to take notice of it. But, whatever the facts, we cannot assent to the proposition—apparently recognized by the court—that the mere silence of plaintiffs’ grantors,' disconnected from other circumstances in evidence, created an estoppel at law. In Edwards v. Allouez M. Co., 38 Mich. 46, the court said: “ The writ is not ex debito justitise for any injury threatened or done, but the granting of it must always rest in sound discretion governed by the nature of the case”; and as the injury threatened to the plaintiff was small, for which damages at law would be full compensation, the injunction was refused. Traphagan v. Mayor, 29 N. J. Eq. 208, was a case where the city authorities had already opened a street. The plaintiffs had permitted the authorities to oust them (without seeking to recover the possession at law), and to expend a large amount of public funds. The vice-chancellor said' the complainants “had encouraged or sanctioned” the action of the public authorities, and “by laches, if not acquiescence, had lost the right to have the use of the street forbidden.” Demarest v. Hardham, 34 N. J. Eq. 469, was a bill to enjoin the use of a steam-engine by a bookbinder in an adjoining building. The vice-chancellor refused a general injunction, but enjoined the defendant from operating his engine so as to produce a vibration in plaintiff’s building, etc. He said an injunction to restrain a lawful business should never be granted, except a plaintiff shows an invasion of a clear legal right, which cannot adequately be redressed by damages, but remarked: “Equity takes cognizance of a nuisance which is permanent in its character, or which produces a constantly recurring grievance, more readily than any other.” The Supreme Court of the United States has said that a hill for a private nuisance should show that the plaintiff is without adequate legal remedy; but that equity will interfere by injunction where the injury is irreparable, or from its continuance must occasion a constantly recurring grievance. And to justify an injunction until a trial at law can be had, no improper delay in resorting to a court of law must be shown,'—three years or more of delay precluding a party from relief in equity until he has vindicated his right at law. (Parker v. Woolen Co., 2 Black, 545.) Brown v. Carolina: The injury to plaintiff was trifling, and susceptible of adequate compensation in damages. (83 N. C. 128.) Fuller v. Inhabitants: A case of acquiescence. The application was 4o restrain the appropriation of money alleged to have been collected by a town under an illegal tax levy. (1 Allen, 166.) Del Monte v. Pond: An appeal from an order refusing to dissolve a preliminary injunction. (23 Cal. 84.) Royal Bank v. Grand Junction: The facts are very complicated. While the terms “ laches ” and “unreasonable delay” are employed with reference to the conduct of the plaintiff, the case shows that these expressions are used to denote an acquiescence or assent, which the plaintiff afterwards sought to withdraw. (125 Mass. 490.) Brown v. County: A bill by the county to enjoin the collection of a judgment against it. The supervisors of the county made two several tax levies for the payment of the judgment after they were expressly notified of its existence, and for what it was recovered. (95 U. S. 157.) Godden v. Kimmel: Clifford, J., said: “Where there has been gross laches and an unexplained acquiescence in the operation of an advers0e right, courts of equity frequently treat the lapse of time, even for a shorter period than that specified in the statute of limitations, as a presumptive bar to the claim.” (99 U. S. 201.) Blanchard v. Doering: Clear case of acquiescence. (23 Wis. 203, 204.) Sheldon v. Rockwell: “The plaintiff, by his silence and acquiescence ” for more than nineteen years, during most of which time the acts done by defendants were protected and fostered by express statute, “has invited and encouraged the defendants to expend their money,” etc. (9 Wis. 161.) Angell says: “No single proprietor, without consent, has the right to use the flow of the water in such manner as will be to the prejudice of any other.” (Angell on Watercourses, sec. 340.) In Cobb v. Smith, 16 Wis. 696, the court holds that an acquiescence by the plaintiffs of several years, in the flowing of their lands, was such evidence of assent as would authorize the refusal of an injunction. “If the plaintiffs have suffered damage, they have their common-lav/ remedy.” “When a person acquiesces, .... a court of equity will not interfere by injunction, but his remedy at law remains.” (Wood on Nuisances, sec. 360.) Estcourt v. Estcourt Hop Essence Co.: Bill to enjoin the use of a trade-mark. The “hop essence” was an article used by brewers only. The plaintiff waited seven months after advertisement of defendant asserting its rights, and then brought suit. He was unable to show that a single brewer had been misled,—a circumstance on which Lord Oairns lays some stress. But there was a conclusive reason why equity should not interfere. The “hop essence” was introduced, recommended, and sold to enable brewers to supply to the public a liquid which they might represent as being made of pure hops, when it was not in fact so made. The chancellor said: “It is not the province of the court to protect speculations of this kind.” (L. R. 10 Ch. App. 276.) Wendell v. VanRenssalaer: A case of complete estoppel. (1 Johns. Ch. 344.) In Ware v. Regents, 3 De Gex & J. 230, the plaintiffs’ lands had been temporarily flooded, but there was no threatened future injury. The weight which may possibly be given to mere delay is suggested by the remark of the chancellor, who said that although the delay did not amount to absolute proof of acquiescence, yet “ it was calculated to throw considerable doubt upon the reality of the plaintiffs’ injury.” Goodin v. Cincinnati: Held, in effect, that one who permits “a public railroad to be constructed over his land” cannot, after large expenditures, made on the faith of his apparent acquiescence, enjoin its use. There remains only the right' of compensation. (18 Ohio St. 169.) Wiggin v. Mayor: An attempt to enjoin the collection of a local assessment for improving a street in New York City. Held, after the report of the commissioners of assessment was approved by the Supreme Court (in accordance with the statute), equity would not interfere to correct their estimates. Further, if the proceedings of the common council were void, a sale of the complainant’s property would not cast a cloud on his title. (9 Paige, 24.) The master of the rolls said that acquiescence in the erection of noxious works, while they produce little injury, does not warrant the subsequent enlargement of them to an extent productive of great damage. (Bankart v. Houghton, 27 Beav. 425.) Mr. Spence writes: “The Court of Chancery will therefore in many cases refuse to give its aid in favor of an equitable claim, though a less period than the corresponding statutory period shall have elapsed, if the length of time, and circumstances of the case shall require the application of that principle.” (Spence’s Eq. Jur. 61.) In the Matter of Lord: For the peace of society, equity will refuse to interfere when there has been gross neglect in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights. (78 N. Y. 112.) Grant v. Tynney: The court refused injunction when a trifling though continuous trespass had been submitted to for six years, but left the plaintiffs to their rights at law. (L. R. 8 Ch. App. 14.) Fullwoodv. Fullwood: The chancellor said: “Mere lapse of time, unaccompanied by anything else, has just as much effect and no more in barring an injunction, as it has in barring an action for deceit. ... In saying this I do not shut my eyes to the possible existence of a purely equitable defense, such as acquiescence,” etc. (L. R. 9 Ch. Div. 176.) In Burden v. Stein, 27 Ala. 104, S. C., 62 Am. Dec. 758, it was held: 1. A riparian proprietor may enjoin in equity without first establishing his right, at law; 2. That while in cases where the plaintiff’s right is not clear until established at law, equity will refuse to enjoin if it is shown that he has been guilty of improper delay, the principle has no application where his right is clear, and of such a character as entitles him to ask for the interference of equity without resorting to law in the first instance. Thomas v. Woodman: The only injury complained of by plaintiff was an offensive odor arising from the decay of grass accumulating in the bed of a stream near his premises. The plaintiff knew the “full consequences ” for two years before applying for relief. (23 Kan. 277.) In Corning v. Winslow, 40 N. Y. 191, the Court of Appeals was divided. The judges agreed, however, that equity will interfere, by mandatory injunction, to compel the restoration of running water to its natural channel; and that since the code it is not necessary that plaintiffs’ right should be first established at law., A minority of the judges thought the circumstances—in view of the great loss and injury to the defendant, the slight advantage to be "gained to the plaintiff by a restoration of the water, the assent of plaintiff’s grantor to the building of permanent and expensive works during the lease, and the delay of the plaintiff after the expiration of the lease—rendered the issuing of an injunction improper. The majority held these conditions did not deprive the plaintiff of his right to equitable relief. In Corning v. Troy, 39 N. Y. 313, the court said: “In order to estop the owner of a water right in equity from enforcing his right on the ground of his knowledge and acquiescence in the making of expenditures and improvements thereon by another, the consent and agreement of such owner thereto ought to be established by the clearest and most satisfactory evidence.” This statement is said to be a mere dictum, but it appears to us to be substantially a correct exposition of the rule. In the light of the authorities, it seems clear that the acquiescence of the plaintiff, which will deprive him of his right to appeal to equity, must be such as proves his intelligent assent. It may be that delay in seeking relief may tend in some appreciable degree to strengthen the probability that plaintiff has assented to a slight injury; or tend, in connection with the other evidence, to show that ho has suffered no real injury,—as suggested in Ware v. Regents, supra. But in every case the question returns, Has the plaintiff assented to the acts of the defendant? We see no error in the statement (Corning v. Troy, supra), that the “consent and agreement” of the plaintiff must appear. It perhaps adds no force to this statement to say that the consent ought to be established by “the clearest and most satisfactory” evidence; although similar language was used by Lord Eldon. (Dann v. Spurrier, supra.) Under our codes the riparian proprietor is not required to establish his right at law by recovering a judgment in damages before applying for an injunction. The decisions (in cases of alleged nuisances) based on the failure of the complainant to-have had his right established at law have no appositeness here. Here the plaintiff must indeed clearly make out his right in equity, and show that money damages will not give him adequate compensation. If he fail to do this, relief in equity will be denied. But if he proves his case, relief will be granted, although he has not demanded damages at law. In the case at bar the plaintiffs do not admit that damages would constitute compensation, and ask for an injunction until they shall recover such compensation in an action for damages. The decisions which bear on that class of cases, and which require of the plaintiff to show that he has promptly sought redress at law, have little applicability. In considering the question whether, in the case at bar, the plaintiffs assented to the acts of the defendant, and the injuries caused by those acts, we are bound to assume that the waters of Kern River, in their natural course, ordinarily flow to the lands described in the complaint, or to a considerable part of them, because there was a substantial conflict in the evidence as to that matter, and the court below erred in rejecting certain testimony bearing on that issue. We must also assume that plaintiffs were the owners or entitled to the possession of such lands when the defendant’s alleged right to appropriate the waters began, because (if the certificates hereinafter spoken of had been admitted in evidence) the certificates of purchase would have proved the right of exclusive possession. Moreover, we must assume that the injury to the plaintiffs was of the character and extent which the evidence tended to prove, because, if any injuries flowed to plaintiffs from defendant’s acts, there was no conflict as to the nature of those injuries. •' The injury to the plaintiffs, so far as it had already accrued, was, perhaps, such as could have been compensated in money damages. But even if this should be conceded, the defendant has asserted its right to continue its diversions, and throughout these proceedings has persisted in that assertion. The entire injury, already accrued and future, is irremediable at law, since a judgment for damages would not constitute complete and adequate redress within the meaning of the decisions. We cannot so hold, in view of the nature and extent of the injuries, unless we hold that the riparian proprietor can never ask for an injunction when future diversions of waters are threatened; and the adjudications to the contrary are very numerous. So to hold would be to cast upon the plaintiffs the burden of bringing and maintaining a multiplicity of suits at law. The continuation of the diversions must result in constantly renewed grievances, and might result in the acquisition of an adverse right by the defendant. And while the defendant has expended very large sums of money, the evidence tends to prove that neither the injury already inflicted on the plaintiffs, nor that to be anticipated, is slight or trivial, but that it is great and substantial. Under these circumstances, we must decline to hold that by their omission to bring this action'sooner than it was brought (with actual or presumed knowledge of the things done by the defendant), the plaintiffs are shown to have acquiesced in the defendant’s diversion of the water, and the consequences thereof, in such manner as that the assertion of their rights in this action is to be treated as an attempt to ignore or to recede from a previous assent. A finding of unreasonable laches often assumes the existence at one time of a cause of action. But the facts found by the court below, on which is based the conclusion of laches, do not show assent, unless the plaintiffs must be held to have assented because they ought to have ascertained that the necessary consequences of the projected works of the defendant would be to deprive them of water which naturally flowed to their lands; or unless the delay to sue after the water ceased to flow, as a consequence of defendant’s works, was, under all the circumstances, evidence of assent. The facts from which the conclusion of laches and neglect is drawn, if sustained by the evidence, are sustained only by evidence of silence on the part of the plaintiffs, with knowledge proved or presumed from the notoriety of the acts and claims of defendant. The inherent difficulty of anticipating, in the fall of 1875, when “a small quantity of water ” was used by the defendant, what would be the results of the completed canal, or when a considerable progress should be made in its construction, is a sufficient answer to the suggestion that the plaintiffs should then have known those results. If, immediately after the work done in 1875, the plaintiffs had applied for an injunction, would a court of equity •have granted it upon facts which would have shown a possible or contingent serious injury? It would have been obligatory on the plaintiffs, at least, to establish clearly that the threatened acts, if consummated, would result in grave injury to them; and in view of the many streams in that region, the various currents of some of them, and the other natural features of the country, it would have been extremely difficult, if not impossible, to prove that such injury would follow. And although the court found that the defendant continuously prosecuted its works, it does not appear from the findings how far those works were extended, or what were their consequences, at any point of time before the plaintiffs began to suffer the real, serious, and substantial injuries of which they complain. The conclusion of law cannot be treated as a finding of fact. It is called a “conclusion of law” in the decision, and is in the form of a proposition of law,— “such laches and neglect as disentitle the plaintiffs,” etc. It does not respond to facts pleaded, nor is it a direct finding of the fact of assent. But if it were a finding of fact, the evidence does not sustain it. The evidence, although it may be circumstantial, must affirmatively prove the assent. It is urged, however, that the defendant was not bound to plead, nor (since the findings need respond only to the material issues made by the pleadings) was the court bound to find the plaintiffs’ consent, or the laches or acquiescence which would prove consent; that the matter of laches or neglect or acquiescence arises out of the evidence; and that a court of equity may and ought, sua sponte, to deny relief, where an appeal is made to its discretionary power of granting or refusing an injunction, when there has been unreasonable delay (which in view of the circumstances shows assent) in seeking its preventive process. * If all this were conceded, the question would become an original one in this court, and the rule (if it were applicable otherwise) that this court will not interfere to set aside a finding when there is a substantial conflict in the evidence would not be applicable. As an original question, the evidence sent here does not prove assent. We are convinced that if the question were submitted to a jury upon that evidence a verdict of assent could not be upheld. II. The plaintiffs are not estopped from maintaining this action by reason of their assent to and approval of certain acts of a third person,—the Kern Valley Water Company. The next question is cognate to the one just discussed. It arises on certain findings from which, respondent contends, it appears plaintiffs lost their right to complain of any diversion of wafer before the commencement of this action. The court below found: — “That the waters of Kern River do not and never did naturally and usually flow to, through, along, by, over, or upon the said lands of plaintiffs, or any part thereof; and that until the year 1876, whatever of the water of Kern River flowed to or reached the said lands, or a.ny part thereof, was from the unusual and extraordinary overflow of said river, or of Kern and Buena Vista lakes, or from the percolation and seepage in these findings mentioned. “ That in December, 1875, one Souther commenced, and in J anuary, 187 6, completed, a dam across Buena Vista Slough, at a point designated on the map hereto annexed as Cole’s Crossing, on or about section five (5), township thirty-one (31) south, range twenty-five (25) east, Mount Diablo base and meridian, and south of where the waters of New River enter Buena Vista Slough, and thereby, at said point, checked the natural flow of the waters of said river through said slough into Buena Vista and Kern lakes, and caused the waters there flowing to take a northward course and away from the said lakes. That in March, 1876, the pressure of the waters against said dam broke through the same, and said river resumed its natural flow to Buena Vista and Kern lakes. That during the said interval of its flow northward, the waters of said New River flowed along said Buena Vista Slough and the adjacent country, to and over Buena Vista Swamp. “ That in the fall of 1876, certain parties commenced the construction of two certain canals, which are correctly laid down on the map hereto annexed, and marked respectively ‘East Side Canal’ and ‘Kern Valley Water Company’s Canal.’ The said East Side Canal commences on section fourteen (14), township thirty (30) south, range twenty-four (24) east, and extends thence some three (3) miles north, on the eastern side of the said Buena Vista Swamp, and does not touch any of said lands of the plaintiffs. The other canal, heading on section fourteen (14), township thirty (30) south, range twenty-four (24) east, as at present constructed, extends northward some twenty-four miles, is one hundred and twenty feet wide on the bottom, one hundred and forty feet wide on the top, and ten feet deep, with a fall of one foot per mile, and capable of carrying more than twelve hundred cubic feet of flowing water per second, and terminates at a point outside of said lands of plaintiffs. That in June, 1877, the Kern Valley Water Company, a corporation organized and existing under the laws of California, for the purpose of acquiring canals and water rights in said county of Kern and elsewhere within this state, to be used or disposed of for irrigation, transportation, domestic, mechanical, and other purposes, took possession and control of said canals, and thenceforth continued the construction thereof northward toward the lake known as Tulare Lake, designated on said» map. That in the fall of the year 1877, the said Kern Valley Water Company reconstructed the said dam at Cole’s Crossing; and in connection therewith constructed a levee extending westward to the bluffs on high ground, and running eastward from said dam about one and one quarter miles, as shown on said map, thereby preventing the waters of Kern River from flowing to Buena Vista Lake, and turning the same northward to their said two canals. That at the head of said canals, and in conjunction therewith, the said Kern Valley Water Company, in 1877, constructed a certain other dam and levee, extending completely across the said Buena Vista Swamp, as shown on said map, and thereby completely obstructed and prevented the natural flow of any water into, through, or over said swamp northward of said last-mentioned levee, and appropriated and took possession and control of all the waters reaching said levee, and turned the same into the .said canals. That the said dam and levee last mentioned are some distance southward from the southernmost .part of the said lands of the plaintiffs, and from and after their construction no water has naturally flowed, or could naturally flow, beyond the head of said canals, or to or upon the said lands of the plaintiffs, or any part thereof. •“That the.construction of the canals, dams, and levees described in the preceding finding was undertaken and prosecuted with the knowledge, consent, and approval of the plaintiffs. “That the levee last described in said preceding finding was constructed for the purpose of diverting all the water reaching said levee, into the said canals, and such levee does entirely obstruct, and since its construction has obstructed, the natural flow of any water northward in said Buena Vista Swamp, beyond said levee, and diverts the same into said canals, and that the plaintiffs, at and before the time of the commencement of the construction of the said levee, knew of the purposes thereof, and approved the same, and knew of the beginning and prosecution of the construction thereof, and consented to and approved of such construction. That said canals and levee were constructed at great expense, and because of and in reliance upon the said approval and consent of the plaintiffs, and but for such approval and consent would not have been constructed.” The notice of appropriation of seventy-four thousand inches of water was posted and filed for record by defendant’s assignors May 4, 1875. Their subsequent acts (it may here be conceded) related back to the posting and filing of the notice. It may well be doubted whether the evidence sustains the finding that the plaintiffs consented to and approved of the canals and dams mentioned in the foregoing findings. We shall assume, however, that there was a substantial conflict in the evidence in that regard. The building of the two dams, and the assent of the plaintiffs thereto, as found by the court, intervened between the appropriation by defendant’s assignors and the commencement of this action. The construction of the dam at Cole’s Crossing, with or without the plaintiffs’ consent, is unimportant (with reference to the question we are about to consider) if the waters of Kern River have never naturally or usually flowed to their lands. The plaintiffs did not become riparian proprietors by reason of a diversion of the waters of Kern River toward their land (caused by the dam at Cole’s Crossing), with any right to complain of an appropriation made by the defendant or its assignors above Cole’s Crossing and before the dam was constructed at that place. And on the other hand, if part of the waters of Kern River, in their usual and natural flow, reached the lands of plaintiffs (and they were deprived of it by defendant), it is immaterial that more water was turned in their direction by the dam at Cole’s Crossing. It is said by appellants that, since the court found the waters of Kern River never naturally and usually flowed to the lands of the plaintiffs, the findings last recited must be read as a finding that the levee near the head of the canals was built for the purpose of diverting, and did divert, into the canals of the Kern Valley Water Company, only the waters turned toward plaintiffs’ lands by the dam at Cole’s Crossing and the waters of extraordinary overflows. But as the court found that the levee last mentioned prevented the passage of any water to the northward thereof, the respondent is entitled to the benefits of the findings in the alternative, that is, as declaring that, even if the waters of Kern River in their natural and usual flow would reach the plaintiffs’ lands, the plaintiffs had consented to the erection of a dam or levee by the Kern Valley Water Company which diverted all such waters from their lands. Section 811 of the Civil Code provides that the servitude may be extinguished by the performance of any act by the owner of the servitude, or with his assent,—upon either the dominant or servient tenement,—which is inconsistent with its nature or exercise. This seems to be a recognition and statutory declaration of the rule which Professor Washburn says has become well settled, that if. the owner of a dominant estate do acts thereon which permanently prevent his enjoying an easement, the same is extinguished, or if he authorize the owner of the servient estate to do upon the same that which prevents the dominant estate from any longer enjoying the easement, the effect will he to extinguish it. (Easements and Servitudes, 560.) The same writer says that, as forming the subject of property in connection with realty, water may be viewed in two lights: one, as one of the elements of which an estate is composed; the other, as being valuable alone for its use, to be enjoyed in connection with the occupation of the soil. “In the latter sense it constitutes an incorporeal hereditament, to which the term easement ’ is [has been] applied.” (Washburn on Easements and Servitudes, 207.) The flow of the water to and over the riparian lands is not a mere easement. (Stoker v. Singer, 8 El. & B. 36.) But the riparian right, while more than an easement, may be said to include the qualities of an easement. In section 801 of the Civil Code, among “land burdens, or servitudes upon land,” are enumerated “the right of receiving water from land,” and “the right of having water flow without diminution or disturbance of any kind,”—which last includes the right to have a natural watercourse flow, subject to such diminution as results necessarily from a reasonable use by a superior riparian proprietor. It has been held that when the lower proprietor licenses the upper to divert water which would flow to the lands of the licenser, and the licensee has executed the license, the licenser does not grant the servitude within the prohibition of the statute of frauds, but rather is estopped from asserting any right in it. It is not necessary to enter into that question. Whether the executed license would or would not be an executed contract; whether the transaction would or would not operate a transfer from the licenser to the licensee,—section 811 of the Civil Code declares that the effect is to “extinguish ” the servitude. The legislature had as much power to make this enactment as to pass a statute of frauds. The possession of the Kern Valley Water Company, at the points where water was taken, was perhaps some evidence of its riparian ownership. But if the act is to be done by the licensee on a third person’s estate, and the license be executed, it cannot be revoked. (Washburn on Easements and Servitudes, 563.) Appellants claim that the evidence with respect to ti p consent of plaintiffs to the diversion by the Kern Vail f Water Company was not admissible under the allej ¡- tions of the answer, because defendant did not pie! ¡I therein the facts establishing license and its executio |. Counsel refer to Humphreys v. McCall, 9 Cal. 59, whe, p it was held, in an action for damages for the diversion of water appropriated by plaintiffs on the public lands, — the defendants having pleaded the general issue only, —that it was not competent for the defendants to prove that a prior claim to the water existed in a third person, but that such defense should have been specially pleaded. That case turned on a priority of occupation as between the plaintiffs and defendants, and even if a still earlier occupation by a third person had been pleaded, it would have constituted no defense to an' action brought for a diversion of water appropriated by plaintiffs previous to any appropriation by the defendants, unless the defendants connected themselves with the third person,—the first appropriator. In the case now before us, it was for the plaintiffs to show that they •were entitled to the flow of the stream, or of some part of it, when this action was commenced. If their right to the flow was legally extinguished prior to the commencement of the action, we cannot perceive why defendant was not entitled to prove the fact under the denials of the answer. If, therefore, the findings last above referred to are sustained by the evid