Page:The Green Bag (1889–1914), Volume 19.pdf/350

 NOTES OF RECENT CASES so interesting from the points of law involved as from the peculiarity of the facts in issue. The plaintiff was a water company which in the course of years had built up a trade of selling water and had invested in round numbers two million dol lars. The water was taken from the Perris Valley, a basin of forty or fifty square miles in extent. Contiguous to Perris Valley is Menefee Valley, a somewhat similar, though smaller tract of land, separated by a ridge. The company in the first instance drew their supply of water almost wholly from the Perris Valley, but later, they attempted to draw water from the Menefee Valley, and it was attempted to enjoin them from so doing, on the grounds that the plane of saturation, when not illegally interfered with, stands from within eight to twenty feet of the surface of the ground; that upon their lands were growing trees, vines, grasses, and shrubbery, sustained by the waters so standing at this level; that by capillary per colation, and like natural forces, these waters were drawn towards the surface, moistening and nourishing the roots of herbage and vegetation; that the effect of the pumping of defendant was to lower the plane of saturation, so as to render it impossible for the water to reach the roots and thus to destroy these vegetable growths; that

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Menefee Valley with Perris Valley formed a part of one and the same catchment basin, and that the effect of defendant's pumping in Perris Valley was to lower the plane of saturation, under plaintiff Newport's land in Menefee Valley, and thus to work the same disastrous result. The defense was that in a state of nature the satu rated gravels in no way contributed to the nourishment of the vegetation, and that the lands were in great part alkaline and unfit for husbandry. It also was insisted by defendants that underlying the surface of Perris Valley and but a few feet below the surface, was a stratum of hard-baked clay known as "hard pan" below which stratum lay the saturated gravels, and which stratum prevented the capillary drawing of the waters to any point so near the surface as to aid vegetation. It was also urged in defense that on account of the money invested and the greatness of the work, that an absolute, injunction should not be granted, but that damages, if any, should be allowed in lieu of such absolute injunc tion. The lower court sustained the contention of the defendant, and the appellate court upheld their decision in denying the absolute writ of injunction, and allowing an injunction condi tioned on the payment of the damages incurred.