
    BIGGS et al. v. LEFFINGWELL.
    (Court of Civil Appeals of Texas.
    Nov. 12, 1910.)
    1. Waters and Water Courses (§ 85) — Natural Water Courses — Diversion—Injunction — 1Temporary Injunction.
    Under Rev. St. 1895, art. 2989, as amended by Laws 31st Leg. c. 34, providing for the grant of a' writ of injunction where it shall appear that the party applying for the writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant, and Rev. St. 1895, art. 3115 et seq., declaring that unappropriated waters of flowing rivers may be acquired for irrigation and other purposes, a lower riparian owner is not entitled to a temporary injunction against the diversion of water for the irrigation of nonriparian land in the absence of a showing that his land is now being used or is intended for immediate use or is prepared for agricultural or other purposes rendering the use of the water of the river necessary and beneficial.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 84-SS; Dec. Dig. § 85.]
    2. Waters and Water Courses (§ 85) — Natural Water Courses — Diversion—Injunction — Temporary Injunction.
    The necessity of preventing defendant from obtaining a prescriptive right to take water from a river above the rinarian land of plaintiff, being met by the institution of a suit for an injunction, does not authorize the granting of a temporary injunction.
    TEd. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 85.]
    Appeal from District Court, Ward County; S. J. Isaacks, Judge.
    Action by Charles H. Leffingwell against S. V. Biggs and others. From an order of a judge in vacation granting an injunction without notice to defendants, they appeal.
    Order for injunction vacated, and temporary writ of injunction dissolved.
    W. W. I-Iubbard and Monroe & Roark, for appellants. McKenzie & Brady, for appellee.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   CONNER, C. J.

This is an appeal from an order of the judge of the Seventieth judicial district, made in vacation and without notice, granting an injunction on the application of appellee, Charles H. Leffing-well, restraining appellants from the use of the waters of the Pecos river upon certain nonriparian lands described in the petition, and limiting appellants to the use of their just proportion of water upon their riparian lands. Omitting mere generalities and legal conclusions, the petition in substance is that appellee is the owner of a section of land fronting on said river and riparian to it; that defendants own certain riparian lands above that of the plaintiff upon which they are operating an irrigation system, and are also using the waters of said river to irrigate certain other lands not riparian to the river, and are wasting large quantities of water without making provision for its return to the river above plaintiff, etc. It is alleged that the lands described in the petition are situated in Ward county within the arid district of Texas; that they are principally valuable when irrigated; that plaintiff’s land is susceptible of irrigation; and that the use of the waters by defendants in the. manner and to the extent described will largely destroy the value of plaintiff’s land and cause him irreparable damage.

Several interesting and important questions have been presented, but, in the view we have taken of the present proceeding, it does not become necessary to determine the ultimate rights of the parties, or to discuss to what extent, if at all, our laws on the subject of irrigation and our situation as a people, may have modified the common law on the subject of riparian rights. We deem it sufficient to now say that appellee’s petition in our judgment fails to show that he was entitled to the temporary relief invoked and received by him. The petition fails to show that appellee’s land is now being used or intended for immediate use, or is prepared for agricultural or other purposes rendering the use of the waters of the Pecos river either necessary or beneficial. The order is. defended on the broad ground that appellee, as against the nonriparian land, has the unqualified common-law right to have the water flow over and by his land in its natural state and quantity and that it “is immaterial as to whether the plaintiff desires to use said water at the present time or in the future.” In every system of judicature the remedy of injunction is classed as a harsh one, and not to be awarded save when necessary to preserve some right of the complaining party. Beach on Injunctions, §§ 117, 118; Rend v. Venture Oil Co. (C. C.) 48 Fed. 248; Swan v. City of Indianola, 142 Iowa, 731, 121 N. W. 547; Holbein v. De la Garza, 126 S. W. 43. This principle is expressly voiced by our statute (Rev. St. 1895, art. 2989) authorizing the issuance of injunctions as finally amended by act approved April 22, 1909 (see Gen. Laws 1909, p. 354). This law provides so far as here applicable, that; “Judges of the district and county courts shall, either' in term time or vacation, hear and determine all applications, and may grant writs of injunction returnable to said courts in the following cases: (1) Where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the appellant.” Under this statute, to entitle appellee to a temporary injunction, it must appear not only that he is entitled to relief, but that such relief requires the restraint of acts prejudicial to him. The general rule relating to preliminary injunctions is stated in language applicable here by Judge Reed in the case of Rend v. Venture Oil Co., supra, viz.: “The complainant must show a clear legal or equitable interest or right which is to be protected; that there must be a well-grounded apprehension of immediate injury to those interests or rights, and a clear necessity must be shown of immediate protection to such interest or right, which would1 otherwise be seriously injured or impaired. If it appears that the preliminary injunction is not necessary to preserve interests or property in statu quo until final hearing, and the rights of the complainant will suffer no serious injury until that time, or that the injury threatened is of such nature that it can be remedied on final hearing, then the injunction ought not to be granted. And so if it appears that the complainant’s rights are not sufficiently clear, and the considerations of respective convenience or inconvenience to parties complainant and defendant, when balanced, show that serious injury may be done to the defendant by the granting of the injunction, and no serious injury will be done to the complainant by withholding it until final hearing, then the injunction ought not to be granted. Other considerations may have at times been held as controlling in special cases, but the general rules, as I have stated, are those which have been held as governing the discretion which is to be exercised in passing upon such motions.”

Under certain circumstances the Legislature (Rev. St. 1895, art. 3115 et seq.) has declared that unappropriated waters of flowing rivers and storm waters may be acquired for irrigation and other purposes, thus favoring the reclamation of arid portions of the state, and it may be, as can fairly be inferred from the petition, that a considerable area of agricultural land and many persons will be seriously affected by the sudden and continued deprivation of water. In the end this consequence may be necessary to ap-pellee’s right, but it is not immediately required and ought not be brought about to satisfy a mere artistic desire to see unappropriated and waste water flow by appel-lee’s survey on its way to the sea. The only immediate necessity alleged is that the temporary order and writ is required to prevent appellants from obtaining a prescriptive right to appellee’s 'just proportion of water as a riparian owner. The institution of the suit, however, has this effect, so that as before said, no fact is stated in appellee’s' petition which requires the temporary injunction.

We accordingly conclude that the order for injunction should be vacated and set aside, and that the temporary writ of injunction should be dissolved, and it is so ordered.  