Johnson v. Superior Court

4 P. 575, 65 Cal. 567, 1884 Cal. LEXIS 633

Opinion

Ross, J.

In an action brought by one Bliss against the petitioner and others to enjoin them from diverting the waters of a certain stream, the Superior Court granted a preliminary in unction commanding the defendants to remove the obstructions by which they diverted the said waters, and to permit them to flow undisturbed in the stream, pending the action. Whether there was error in granting the injunction is not now for consideration. The case being here upon certiorari, the inquiry, of course, goes only to the power of the court to make the order. The jurisdiction of the court to grant a preliminary injunction, restraining the defendant from interfering’ with the flow of water pending the litigation cannot be doubted, and we cannot see that its jurisdiction is exceeded when it requires the removal of the means by which the diversion is made. The ultimate aim of the injunction is the undisturbed flow of the water. The objections to the removal of the means by which the diversion is made are no more cogent than the objections to preventing the diversion of the water itself. Upon the hearing in the court below there was testimony tending to show that after the dam that diverted the water had, been in part removed, it was rebuilt by the direction of petitioner, and the diversion of the water continued, notwithstanding the injunction of the court. We do not think the court exceeded its power in adjudging the petitioner guilty of contempt.

Writ denied and petition dismissed.

McKee, J., and McKinstry, J., concurred.

Hearing in Bank denied.