I dissent. I cannot agree with that portion of the opinion which holds that although admitted by the parties, and as the trial court found, North Slough is a natural watercourse, nevertheless “the burden of service owed by land through which there is a natural watercourse is largely determined, not by the fact that it is a natural watercourse, but by the factual conditions which measure the nature and the extent of the servitude.” The facts and conditions, it is stated, which so measure the servitude in the present case, are as shown by the findings of the trial court that since 1936 when the irrigation district abandoned its project, North Slough, by slow and natural processes, has been so built up by debris as to be all but completely sealed off from the parent river; that water flowed in the slough only for negligible periods and only when the river was at flood stage; that respondents had adapted their farming operations to this changed condition in that they had been able to use the dry channel for the passage of farm machinery and livestock to the extent that the channel had become a part of the integrated farming operations of their land which consisted of three parcels purchased in 1926,1931 and 1935 respectively; that the acts of defendants in entering upon plaintiffs’ land, removing the debris at the mouth of the channel, leveling *56it and diverting water therein were wholly without right and had the effect of severing plaintiffs’ land into two parcels, and hence the trial court was required to award adequate damages to plaintiffs for their injuries.
At the outset the conclusion of the majority is met with the basic finding that North Slough is a natural watercourse. It did not lose its characteristics as such merely because water flowed therein only “infrequently in times of storm ... It is sufficient if, during some seasons, water does in fact flow in the stream bed.” (Mogle v. Moore, 16 Cal.2d 1 [104 P.2d 785].) And being a natural watercourse, defendants could properly use it as a conduit for conducting foreign waters (Wat. Code, § 7075; City of Los Angeles v. City of Glendale, 23 Cal.2d 68 [142 P.2d 289]; Stevens v. Oakdale Irr. Dist., 13 Cal.2d 343, 352 [90 P.2d 58]) and augment its flow not to exceed the capacity of its channel. (San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392 [188 P. 554, 9 A.L.R. 1200].)
But, say the majority, the factual conditions found by the trial court “required” it to fix and award plaintiffs adequate damages for their injuries. But what were plaintiffs’ injuries? The evidence, and it is not contended otherwise, only shows a use by the defendants of a natural watercourse as a conduit for conducting irrigation waters which obviously augmented the flow during summer months, but did not exceed its capacity. There is absolutely no evidence of direct injury to plaintiffs’ land such as flooding or erosion by reason of defendants’ use of the channel; hence the only damage which could have been suffered by plaintiffs was, and the court so found, that their lands were severed into two parcels thereby precluding them from using the channel for the free passage of their employees, their farm equipment and their livestock from the north side where extensive farm buildings were located to the south side of North Slough.
It would appear to me that the question so posed has been adequately answered in a series of four cases recently decided by this' court.
The first was Fell v. M. & T. Inc., 73 Cal.App.2d 692 [166 P.2d 642]. In that ease as in the present, the stream was dry in summer but wet in winter. Because of defendants’ draining of irrigation water therein during the summer months, plaintiffs’ lands were flooded, foul growth was stimulated and it was impossible for plaintiffs to move farm machinery and livestock across the stream bed as before. The trial court *57granted plaintiffs’ injunction as prayed and perpetually enjoined defendants from allowing any irrigation waters to flow in said stream. Upon appeal the sole argument in support of the judgment was that since the watercourse had formerly been dry throughout the summer season, any water which would not flow therein during that time of year was foreign to its natural flow, hence it constituted damage per se to the defendants in their farming operations. In reversing the order of the trial court granting the injunctive relief sought, we said:
“The California Constitution, article XIV, section 3, declares that the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent possible. (Compare Water Code, §§ 100-107.) The mandates of this section ‘apply to the use of all water, under whatever right the use may be enjoyed.’ (Peabody v. City of Vallejo, 2 Cal.2d 351, 367 [40 P.2d 486].) Since foreign waters may be produced for beneficial use (Stevens v. Oakdale Irr. Dist., 13 Cal.2d 343, 352 [90 P.2d 58]), and a natural channel may be used as a conduit or drain for the flow of such waters (City of Los Angeles v. City of Glendale, 23 Cal.2d 68, 76-77 [142 P.2d 289]; Stevens v. Oakdale Irr. Dist., supra), and since the use of such foreign waters, as long as it does not interfere with the rights of another, is of no concern to such other (Bloss v. Rahilly, 16 Cal.2d 70, at pages 78-79 [104 P.2d 1049]), it follows that a noninjurious and reasonable use by defendants of the waters imported upon their lands and allowed to drain into Little Chico Creek is within the protection of the Constitution and may not be enjoined.”
In their petition for hearing before the Supreme Court, plaintiffs stated, “If this is to be the law of the State of California, the decision should be affirmed by the Supreme Court, for it is a revolutionary application of the constitutional provision ...” This is true, they said, because any interference with the rights of another may be enjoined, and to allow waters which would not naturally flow in the stream was a positive interference with such rights. However, the petition for hearing was denied.
Shortly thereafter we were presented with a second case, Cheesman v. Odermott, 113 Cal.App.2d 26 [247 P.2d 594], There again, as in the instant case, plaintiffs, a lower owner, sought to enjoin defendants, upper owners, from discharging irrigation water into a natural watercourse which transversed *58plaintiffs’ property. The evidence showed that plaintiffs, in preparing their land for irrigation and farming, had destroyed the natural watercourse through their land. This court affirmed the trial court’s denial of the injunctive relief sought by plaintiffs, and in preface to a restatement of the above quotation from the Pell ease said, “Whatever the rule may be in other jurisdictions, we think that in California it has been modified to fit the necessities of a people who must depend greatly upon irrigation.” (P. 28.) We further held that, since there was no evidence that the use made of the watercourse there in question was anything more than as a conduit to conduct water, such use, although making it impossible for plaintiffs to farm their land as previously, and as they desired to continue, the acts of defendants in so discharging irrigation water into a natural watercourse could not be enjoined. Again a petition for hearing in the Supreme Court was denied.
The third ease was Provident Irr. Dist. v. Cecil, 126 Cal.App.2d 13 [271 P.2d 157]. There the defendants constructed a dike cutting off the flow of water through channels and drains on their land through which irrigation water was run by the plaintiff irrigation district, and thereafter leveled their land, filling such drains. In affirming the judgment of the trial court prohibiting such acts by the defendants, we said that since the channels were natural drains, plaintiffs “had the right to have them maintained in their natural state to carry off waters naturally flowing through them and also to discharge into them such reasonable quantities of excess waters as could be discharged and borne away without injury to defendants’ land.” (Citing Fell v. M. & T. Inc., supra.) No petition for hearing was filed in the Supreme Court.
In the fourth case of this series, Phillips v. Burke, 133 Cal.App.2d 700 [284 P.2d 809], the defendants as in the Cheesman and Provident cases, in leveling their land for irrigation and farming, had obliterated the natural watercourses through their land. It was defendants’ testimony that because of the irrigation runoff during the summer months, it was impossible to farm the land as before and in effect such waters had so divided the land that they were compelled to farm it as though it were three separate parcels. Upon appeal it was contended that winter flow was no measure of reasonable and noninjurious use and that their farming operations would “. . . be seriously impaired by the maintenance of ditches across their land the year around.” In affirming the judg*59ment of the trial court on the particular phase of that case which is the same as the question at issue in the instant case* this court said:
11 The answer to this would seem to lie in the plain meaning and logic of the Fell and Cheesman decisions. The right to discharge surplus irrigation waters would of necessity be used primarily during the summer months, there being little if any need to irrigate during the winter season. If the right exists, it must also be for use during the summer months. Thus to argue, as defendants do, that for the use to be reasonable and noninjurious it must be limited to use outside of the summer irrigating season, is but to wholly deny the right. ’ ’
Although, as it appears to me, the identical question was involved in each of the cited cases, we found in favor of the party using the natural channel across the lower owner’s land for the flowage of irrigation waters, even to the extent of dividing it into three parcels as in the Phillips case, and even though it was contended in the Phillips case that “the Fell and Cheesman decisions are not sound.” But again in the Phillips case, as on each previous occasion, the Supreme Court denied a hearing.
Hence it would seem to follow (1) that if, under the constitutional provision, the applicable code section and the eases cited and discussed, a natural watercourse may be used as a conduit to conduct irrigation waters, and (2) if, as our courts have held, a natural watercourse retains its characteristics whether water flows therein continually or sporadically, and (3) if the flowage of water in a watercourse during the dry season, in the absence of a showing of unreasonable or injurious use, cannot be enjoined even though it divides another’s land making it impossible for him to freely cross what was formerly a dry bed of the channel in carrying on his farming activities, then the judgment of the trial court herein, which is directly contrary thereto, should be reversed.
A petition for a rehearing was denied May 16, 1956. Peek, J., was of the opinion that the petition should be granted. Defendant and appellant’s petition for a hearing by the Supreme Court was denied June 20, 1956.