I dissent in toto, and adhere to the
former opinion in Department.
Paterson, J., concurring.—As I understand this case, and the principles involved, the plaintiff is entitled to water sufficient to fill its ditch to its capacity at the time of the contract with the Boyd’s Bar company in 1854, or to such increased capacity as it has acquired the right to fill by prescription or otherwise since that time, and when there is not sufficient water for this purpose may shut down the defendant’s gate until there is a sufficient supply.
The defendants are entitled at the proper point to draw from the surplus water—-that is, water which would flow over the dam after the plaintiff’s ditch is filled.
*60In determining how, when, and where this surplus may be taken, all the circumstances of the case must be considered. The plaintiff is bound to use reasonable care in diverting sufficient water to fill its ditch so as not to occasion unnecessary waste of the surplus water. To do this it must raise its dam to a height sufficient to fill its ditch whenever the stage of the water renders it necessary to do so. That is to say, plaintiff is not entitled to a flow of eight or any other number of inches of water above and over the crest of the dam, simply to fill its ditch because it has always heretofore enjoyed the same, but, when desiring to obtain a flow of water through its ditch to its full capacity at low stages of the water, it must raise the crest of its dam to a level with the top of its ditch if necessary to fill it, and prevent surplus water, which the defendant desires to use, from flowing over the dam.
Whether the defendants are entitled to tap the stream or pond at any particular point is a question for the court to determine upon all the circumstances. The plaintiff has the right to build and maintain its dam, and to flow back the waters to ány extent upon the public domain necessary to fill its ditch in a reasonable manner; and defendants have no right to interfere with plaintiff’s works or possessions so as to injure or endanger its dam or other structure, or to render its diversion of water sufficient to fill its ditch more difficult or expensive than it was before, and while operating in a reasonable and careful manner; but, when the purpose of plaintiff’s dam has been accomplished, it cannot prevent others from enjoying the use of the waters running to waste, unless they are proposing to take the same at a point or in a manner that will interfere with the free use and enjoyment of its water right or other property. Whatever structures it has found necessary to build are its property, and whether they be dam or sidewalls probably no one would be permitted to cut through or under them under any circumstances; but that is not a question in this case. Here the. sidewalls *61are natural banks of rock, and the area above the dam which the plaintiff is entitled to flow and exclusively occupy is, as stated before, a question for the court to determine upon all the circumstances of the case.
It does not clearly appear whether the question of reasonableness of the plaintiff’s claim of exclusive control of all the slack water entered into the judgment of the court below, but the latter seems to have placed its decision squarely upon the proposition that the defendants are not entitled to tap the pond of water for the purpose of drawing water into its ditch at any point along the line of slack water.
There are other reasons we think why the case ought to go back for further consideration. The court found (finding 4) that a temporary crest or “flash board” eight inches in height is sufficient at low stages of the water to fill plaintiff’s canal to its full capacity, and yet in finding 5 held that “in order to draw the surplus from the plaintiff’s dam, without taking the water from plaintiff’s canal, it would be necessary to raise plaintiff’s dam from twenty-two to twenty-four inches higher, and also to raise the banks of plaintiff’s canal.” There is here an apparent inconsistency. If the finding quoted be correct, the plaintiff would be entitled to an injunction, because,, as stated before, the defendants have no right to impose any additional burden upon the plaintiff, except such as is necessary to preserve the surplus water from waste, or subject its dam or ditch to any additional danger.
The evidence shows that the plaintiff’s ditch was.enlarged at different points since the date of the Boyd’s Bar ditch contract, but the court does not find whether these enlargements increased the capacity of the ditch. It simply finds that “at the point where this widening of the canal occurred the capacity was increased, but to what extent the evidence does not enable the court to determine.” The rights given to the defendant by the contract referred to ought not to be affected by any subsequent alteration of the plaintiff’s ditch, and unless the *62plaintiffs have acquired the right to use the ditch in an increased capacity through the acquiescence of the defendants, the judgment is erroneous in that regard. In its conclusion of law the court found that, “ by reason of the long acquiescence of the defendants, for a period of about twenty-five years, without objection, in such increased capacity of plaintiff's canal as may have resulted from the widening of portions of the canal in 1862 and 1864, the defendants are now estopped from making any complaint of said widening of said canal, and are not entitled to any relief with respect thereto." It is earnestly claimed by appellants that there is “not a scintilla of evidence to sustain the finding or conclusion of law that defendants lost or plaintiff acquired any right by acquiescence or by estoppel of any kind.”
This contention is based upon the proposition that the defendant's gate has never been shut down since the plaintiff's ditch was widened; that there has always been sufficient water for both ditches as they now exist; that plaintiff had a right to enlarge its ditch to any size it chose, as long as it did not interfere with the defendant's ditch; that as no right was interfered with, there was no ground for objection, and no suit could have been maintained until defendant’s rights were interfered with. The legal propositions involved in this contention are sound, but whether they are supported by the record as claimed we deem it unnecessary to determine, as the case must go back for another trial.
Garoutte, J.—I concur in the reversal of the judgment and also in the views of Mr. Justice Paterson upon the principal question discussed.
De Haven, J., dissenting.—I dissent.from the judgment. Upon the main question therein discussed I concur in the opinion written by Mr. Justice McFarland in deciding this case in Department, but after a more careful examination of the judgment appealed from I think it erroneous in so far as it reserves to the *63plaintiff the right to close the box through which the defendants are to divert the water to which they are entitled under the Boyd’s Bar ditch contract, whenever there is not sufficient water to supply the capacity of plaintiff’s ditch as at present constructed. It is not clear to me from the evidence that the capacity of this ditch has not been materially increased since the date of the Boyd’s Bar ditch contract, but the court below has failed to make any finding whatever in relation to the fact. The cause should be remanded, with directions to the court below to find whether the capacity of plaintiff’s ditch has or has not been increased, and thereupon to modify its judgment so as to permit the defendants to exercise all the rights enjoyed by their predecessors under the contract above referred to, the full rights given by that contract, unaffected by any subsequent alteration of plaintiff’s ditch.
The following is the opinion rendered in Department Two referred to in the dissenting opinions of Justices McFarland and De Haven.
McFarland, J.—This action was brought to restrain defendants from diverting water from a stream called the “South Fork of the American river,” at and from a certain dam of plaintiff on said stream. Judgment went for plaintiff, and defendants appeal from the judgment and from an order denying a new trial. The main facts in the case are these: In 1851 plaintiff located a dam and canal, the dam to be at a point on said South Fork at a place called “¡Rocky Bar,” and the canal to run to various localities to carry water for mining and agricultural purposes. In 1852 and 1853 the dam and canal were completed. The structure of the dam was at first made of wood, but in 1868 it was rebuilt of stone. The canal was of quite large dimensions, and about eighteen or twenty miles long, and during the later months of the dry seasons carried all the water of the stream. At other times there was a surplus of water, which ran over the crest of the dam. The water *64was backed up behind the crest of the dam so as to make a pool or pond. The dam and canal have been in this condition ever since 1853, and have been since then continuously used by plaintiff for beneficial purposes—for carrying water for sale to miners and agriculturists, and for irrigating vineyards and orchards owned by plaintiff. On March 27, 1854, the plaintiff, by a written instrument granted to an association of persons called the Boyd’s Bar Water Company, “the right, privilege, and emblement to put in, insert, and maintain in the dam of said Natoma Water and Mining Company .... a box of sufficient size, width, and depth to draw water sufficient to fill and supply the ditch, flume, and race of said Boyd’s Bar Water Company, at, in, and with its present dimensions, say of two feet square.” This instrument also provided that the plaintiff should not be obliged to maintain the said dam; and, further, that if there should occur any deficiency of water to plaintiff’s canal, the plaintiff should have the right to close the gate supplying the Boyd’s Bar ditch, and keep it closed while the deficiency continued. (In this instrument the word “ dam” is evidently used, not in the strict sense of a structure across a watercourse, but in the sense frequently given the word, which includes the pool or pond created by the structure.) Immediately after the execution of this instrument, in 1854, the Boyd’s Bar company, under said instrument, “put into” the northerly side of the pool of plaintiff’s dam, at a certain place, a certain box, through which the owners of the Boyd’s Bar ditch have ever since been accustomed to take water to fill •said ditch. And there seems to have been no difficulty about the right to take water under said instrument through said box placed in the side of the dam as aforesaid. Once or twice the plaintiff closed the gate, without objection. In 1883 the defendant, Hancock, became the owner of said Boyd’s Bar company’s ditch and its rights under said instrument. This ditch is also sometimes called the “ Clarke and Eastman ditch.” There is *65some contention as to that part of the judgment which deals with the Boyd’s Bar ditch, and the amount of water to which it is entitled, and that part of the judgment will be hereafter noticed. But the most important contention in the case relates to a new right asserted by defendants, apart from and beyond the right accruing through said Boyd’s Bar ditch. In 1887 the defendant, Hancock, posted a notice at plaintiff’s dam, to the effect that he intended to widen his ditch so that it would carry two thousand inches of water; that he claimed that much of the water of said South Fork, and that he intended to divert it “from said Hatoma dam on the west side of the river.” (The canal of plaintiff takes its water from the opposite side of the river, which is sometimes called the “south side” and sometimes the “east side.”) Under said notice defendants commenced to enlarge said ditch, and to construct additions to it, and at the commencement of this action a new piece of ditch was being constructed by them near the dam, and had reached within about seventy-five feet of plaintiff’s said pond or pool. Shortly afterwards this piece of ditch, which partly consisted of a tunnel through granite rock, had reached to within ten feet of the water of plaintiff’s dam, leaving between the ditch and .the water only a few feet of earth, which could have been removed by a few hours’ work. This ditch, if permitted to be completed, would tap the water restrained by the dam at a point about forty feet above the crest of the dam, and ten inches lower than the bottom of plaintiff’s canal on the other side of the stream. The result would be that defendants’ ditch would drain the water raised by the dam, so as to take it nearly all from plaintiff’s canal. The judgment restrains defendants from thus completing their ditch, and running it into the back water of plaintiff’s dam.
Appellants say that they intended only to appropriate the surplus waters of the stream after plaintiff’s canal had taken its supply, although their notice does not *66state such intention; and they invoke the rule that surplus water may be appropriated. There is no doubt that surplus water may be appropriated; and the quotation-in appellant’s brief from section 83 of Pomeroy on Riparian Rights correctly states the rule on the subject. But the author says in that section that such appropriation of surplus water may be made “if no interference with the rights of the prior appropriator is thereby caused.” But have appellants the legal right to tap the head of water created by respondent’s dam, to inaugurate a perpetual trespass upon respondent’s property, to practically take control of that over which respondent has exercised complete dominion and control for nearly forty years, and to take possession of that which respondent has possessed during that period of time? The principles upon which property rights on the public lands of the United States in California ware acquired, before government surveys and sales, have long been settled, the main rule being that a prior appropriation gives title. “Legislation and decisions have been uniform in awarding peaceable enjoyment to the first occupant either of the land or of anything incident to the land.” (Tartar v. Mining Co., 5 Cal. 398.) Such appropriation was effected either by taking actual possession—possessio pedis—or, by doing such 'acts as, considered with reference to the nature of the right to be acquired, were, in good sense and according to established customs, equivalent to actual possession. Water was appropriated by constructing ditches and turning water into them by means, generally, of dams erected across watercourses; rights to the future diversion of the water, pending the completion of the ditches, being preserved by notices of intention to divert. Under this system properties of immense values were created in ditches, canals, and dams; and Congress, by the act of July 26,' 1866, enacted that such properties should be maintained and protected. This act was held by the United States supreme court in Broder v. Water Co. (respondent in the case at bar), 101 U. S. 274, to be a *67mere “ recognition of the pre-existing right of possession”; and it is clear that respondent’s pre-existing right of possession embraced its dam and the head and elevation of water created by it, and the pond and”pool behind it, and the land perpetually covered and occupied by the water as fully and effectually as it did any other part of its canal property. The dam, including the land which is necessarily covered with water in order to be of any beneficial use, the water-head, and the pool or pond with its lateral approaches and supports, was an integral part of the canal' itself. Indeed, as stated in Hutchinson v. Railroad Go., 37 Wis. 604, although the strict meaning of the word “dam” is a barrier built across a watercourse to confine and keep back flowing water, yet it is frequently used to designate all that results from the barrier. It was said in that case: “So we sometimes hear of fishing or bathing in a dam; and often of water in a dam—meaning in the pond. So a pond is made to include the dam, even in judicial phrase. (JacJcson v. Virmelyea, 6 Cow. 677.) And the grant of a dam is held to include an easement in • the pond. (Maddox v. Goddard, 15 Me. 218.)” But by whatever name it may be called, respondent obtained a possessory right and title to the land which it appropriated and permanently occupied by means of its dam, and acquired the right to maintain the pond or pool and head of water above the barrier which it built across the stream; and this title was as perfect as any other title to a part of the public domain acquired by appropriation for any other legitimate purposes. It was expressly held in Rupley v. Welch, 23 Cal. 453, “the construction of a reservoir across the bed of a ravine for the purpose of collecting the water flowing down the same, to be used in irrigating a garden or fruit trees, gives to the party constructing the same a vested right of property in the reservoir.” (Of course, in all such appropriations—even of mining claims—there had to be a reasonableness as to the amount or extent of the appropriation; but no such question arises in the case *68at bar.) According to the foregoing views the court below was right in enjoining appellants from running their ditch into respondent’s pool, and into and upon the land possessed by respondent, by means of its dam and pool. An injunction always lies to restrain threatened permanent interference with water rights. (Angelí on Water Courses, sec. 444, et seq.; California cases cited in Gear’s Index Digest, at foot of page 426.) “The interposition of a court of equity was required to prevent defendant’s wrongful acts from ripening into a right, and on that ground alone the interference of a court of equity was properly asked and granted.” (Moore v. Clear Lake Water Works Co., 68 Cal. 146; Mott v. Ewing, 90 Cal. 231.) Moreover, whenever there is a threat and intent to wrongfully enter upon another’s real property, and to take permanent possession thereof and effect a permanent lodgment there, the threatened injury is “irreparable in itself,” and the insolvency of the intruder or the actual damage which may ensue is immaterial. (More v. Massini, 32 Cal. 595; Richards v. Lower, 64 Cal. 62; Crescent City Wharf and Lighter Co. v. Simpson, 77 Cal. 290.) Again, the threatened acts of appellants would be in the nature of waste, would destroy the very substance of respondent’s estate, and would create a perpetual nuisance; and against such acts injunction is the proper remedy. Such acts would not constitute mere fugitive and temporary trespasses, but a trespass of a continuing nature, whose constant recurrence would render a remedy at law entirely inadequate.
With respect to respondent’s rights under the Boyd’s Bar contract, we think that they are sufficiently preserved by the judgment. The judgment decrees that “ defendants may take sufficient water from plaintiff’s said dam to supply a ditch two feet wide and two feet deep with the grade of the ditch known in 1854 as the ‘Boyd’s Bar ditch’”; and we do not think that the specification of the box (and its location) through which the water is to be taken is any abridgment of *69the right. The water is to be taken substantially in the manner in which it has always been taken since 1854. It is contended that respondent’s canal has been enlarged since the date of the contract, and that therefore respondent should not now have the right to close the Boyd’s Bar ditch when the canal is not supplied. But the court does not find that the carrying capacity of the canal has been increased. In 1862 and 1864 the respondent cleaned out the canal, and reconstructed some portions of it by substituting earthwork for wooden flumes; and the court merely finds that in “some places” it was made wider, and that at those places the capacity was increased, hut to what extent the evidence does not show. The evidence does not show an increase of the capacity of the Whole ditch, and it is not likely that if there had been any substantial increase, the owners of the Boyd’s Bar ditch would have acquiesced therein for nearly thirty years. Indeed there is not and has never been any serious trouble between the parties growing out of the Boyd’s Bar contract; the real contest is about the new right asserted by appellants. The doctrine that the point of diversion of water may be changed is, of course, subject to the condition that the change must not interfere with the rights of other parties. With respect to the minor points in the case, it is sufficient to say that, in our opinion, the findings are sustained by the evidence, and that the findings are full enough to determine the material rights of the parties. We see no error in the record. Judgment and order affirmed.