I concur in the judgment and in the opinion of Justice Lorigan.
I believe, however, that the claim of defendants to the so-called waste flood waters, may well be decided on the merits. A well-established but infrequently used principle of the law of injunctions is peculiarly applicable to the case. Beach on Injunctions states it thus: "When an injunction to restrain a nuisance will produce great public or private mischief, a court of equity is not bound to grant it merely for the purpose of protecting a technical or unsubstantial right." (Vol. 2, sec. 1067.) High on Injunctions gives it in this form: "The court may properly be guided by the consideration of the relative convenience of the parties; and if it appears that the benefit resulting to the plaintiff from the granting of the writ *Page 287 will be slight as compared to the injury to the defendant, the relief may be denied and the plaintiff left to the pursuit of his remedy at law." (Vol. 2, 4th ed., sec. 470.) See, also, Peterson v. Santa Rosa, 119 Cal. 391, [51 P. 557]; Jacob v. Day,111 Cal. 571, 580, [44 P. 243], for applications of the principle.
This principle is stated in these authorities with reference to the refusal of an injunction. It is a flexible rule, however, and it will apply to either party and to the granting or refusal of the injunction, according to the circumstances of the particular case. And in the varying conditions to be found in the different parts of this state, this adaptability makes it of the greater value, if wisely administered. In many parts of the state, especially in the large interior valleys, practically all the flood waters are waste waters. They contribute little or nothing to the saturation of any subterranean gravel beds which are resorted to for a supply of water for useful purposes. They rush in great volume to the sea, carrying destruction in their path and overflowing the low lands to the great damage of the owners, serving no useful purpose whatever. If they were stored in reservoirs they might be made to serve a triple purpose. The extreme floods and consequent overflow and destruction would be prevented; the stored water could be used to irrigate large areas of valley land, now left unproductive for lack of water; if distributed upon the plains, for irrigation, a large portion of these waters would in due course of time find their way by seepage and percolation to the channels of the streams, giving an increased and more regular flow in the summer months, increasing the amount available for irrigation in the smaller streams and bettering the navigation of the large rivers; all of which would add tremendously to the growth, prosperity and wealth of the state and to its ability to support the large population which its climate and productions attract. The question of the right to store such flood waters and the terms upon which it can be obtained or exercised is of the greatest importance to the future welfare of the state. In such parts of the state, an injunction to prevent the storage of such flood waters might perhaps, as a general thing, be properly denied.
But in the case at bar, the conditions above described do not exist. The reverse is true. The Santa Clara Valley presents *Page 288 conditions not paralleled elsewhere in the state, except it may be in the San Fernando Valley, in which is found similar gravel beds kept supplied by similar flood waters and rainfall, the use of which water is secured to the city of Los Angeles by its ancient pueblo right. In the Santa Clara Valley a large community has settled upon the lands over the gravel beds in question and, by the use of the waters stored therein, has made probably the richest and most productive region of equal size in the state. Plaintiff is but one of these but he represents a large population engaged in like pursuits. The property of every one of them would be jeopardized by a diminution of the waters that go into this underground reservoir. The floods from which it can be asserted with any reasonable assurance that waste occurs, are infrequent. They come at intervals of several years, and generally the waste water is small and practically indeterminable. The right to obtain such small quantities at such wide intervals for storage in open reservoirs where evaporation would dissipate a large part during the time it would have to be stored to be made of real use, would be of little value, and probably of none at all. It is obvious from the whole case, that the individual defendants never would have inaugurated their enterprise with nothing in view but the privilege of ascertaining, storing, and using these chance waste waters. It would be impracticable and unprofitable. The giving of a decree permitting the storage of such water as could be ascertained to be thus wasted, on the rare occasions when there is any waste, and the refusal of an injunction against such storage, would be of no substantial benefit to the defendants, and would have no practical effect except to render the rights of a large number of persons more precarious and their property less valuable, and possibly less productive. In view of all these circumstances I am of the opinion that the injunction was properly extended to include all the waters in controversy. *Page 289