raised above the level of the adjacent lands | plaintiff, Laugenour, and others owning land on each side of the river, these lands lying below the ridge. The judgment further proin depressed basins or troughs, varying in vided that such canal should have an elevawidth from 2 to 7 miles, which at intervals tion, on both sides, of sufficient height to are separated from each other by low ridges keep back the waters of Cache creek, and which have been built up by the sedimentary the carrying capacity of the canal should be deposits of streams which intersect these ba- sufficient to take care of the drainage through sins and are tributary to the Sacramento the same. The judgment further provided river. On the west side of the river are two that any cuts or excavations made in the main basins, the Colusa basin and the Yolo ridge should be made under the direction of basin, between which is what is known as the court, and that the ridge should be safethe Knights Landing ridge, which extends guarded from further destruction or injury. from the bank of the river at Knights Land- Subsequently and in the year 1913 a drainage ing in a southerly and westerly direction to- district was created by an act of the Legislaward the town of Yolo, and which was orig-ture of that year (St. 1913, p. 109) having for inally built up by the sedimentary deposits its purpose the cutting of Knights Landing of Cache creek. The Colusa basin lies to the ridge and the construction of a canal through northward of this ridge and the Yolo basin the same to a point near the sink of Cache to the southward, and the levels of each of creek in the Yolo basin. This act, in providthese basins have a gradual downward trend ing for the creation of the proposed drainage toward the south, except as intercepted by district, made express reference to the act this ridge. The natural elevation of the ridge of the Legislature approved December 24, at and near the bank of the river is 38 feet, 1911 (St. Extra Sess. 1911, p. 117), adopting which increases as the ridge extends wester- the report of the California débris commisly. During the winter season flood waters sion transmitted to the federal government 'formerly collected in the Colusa basin from on June 27, 1911, providing for a plan of rains and from the numerous streams which reclamation along the Sacramento river and flow into it and also, in times of high water, its tributaries and creating a reclamation from the overflow of the Sacramento river, board and defining its powers and duties. and these when they reached an elevation in Said act also directed that the board of excess of 38 feet would flow over the Knights drainage commissioners to be created in acLanding ridge at the point of its lowest ele- cordance with its terms should take such vation, making their way into the Yolo basin steps as should be necessary— and thence formerly through Cache slough "to open a cut through Knights Landing ridge into the main river. The lands of the plain- in Yolo county, and to construct a canal leading tiff herein are situated on Knights Landing from said cut for the purpose of draining and disposing of the waters of Colusa basin by ridge about 3,600 feet westerly from Knights carrying the same to the head of the proposed Landing on the river bank and at an eleva- Yolo by-pass as defined by and in tion from 41 to 42 feet, according to the offi- accordance with the general plan of the California Débris Commission." cial data of the state engineering department. In the year 1909, during a period of severe flood, the waters collecting in the Colusa basin, augmented by the overflow of the river, reached a higher elevation than that of the ridge near the river. Reclamation District 108, with other landowners having land holdings in the Colusa basin, in order to relieve the situation, attempted to make a cut through Knights Landing ridge with a view to discharging the waters then collected in the Colusa basin into the Yolo basin. One T. F. Laugenour, a landowner in the Yolo basin below Knights Landing ridge, applied to the superior court of Yolo county for an injunction to restrain the above parties from cutting through the ridge. In May, 1910, said court gave its judgment granting such injunction restraining the defendants in that action from in any manner excavating, cutting, or injuring the Knights Landing ridge, or doing any act or thing whatever in, on or about the ridge which would cause or tend to cause or permit the waters above the ridge to escape through or over the ridge, until such time as a canal could be built, under the direction of the court, to such point that the waters of the Colusa basin could be dis

* * *

The act further provided that:

"No water shall be permitted to flow through to be made in this act until the canal to be conany cut or excavation in said ridge provided structed as hereinbefore provided shall have been completed so as to convey the waters flowing or to flow through said cut to the head of said proposed Yolo by-pass * in a manner satisfactory to the said reclamation board. Said reclamation board shall have power to direct the method of the construction of said cut, canal, and levees."

It will thus be seen that this act of the Legislature creating the Knights Landing Ridge drainage district and defining its purposes and powers was in harmony with and in furtherance of the earlier and larger plan for the confining or returning of the overflow waters of the Sacramento river to their natural channel, preventing this recurring overflow and reclaiming the lands of the several basins lying along the course of said river. Stats. 1913, p. 109. Upon the organization of this drainage district under said act, the defendants in the aforesaid action moved the superior court of Yolo county for a modification of its injunction against the cutting of the ridge so as to permit said district to make a cut of sufficient width through the

order to construct the canal below such cut, toward the plaintiff's lands. The effect of the said penetration of the ridge to be tem- both of these changes in the elevation of the porary and to be filled when its immediate ridge at points east of the plaintiff's lands purpose was accomplished so that the waters was to check the overflow of the increasing accumulating above the ridge would not be waters at their former point of exit and to permitted to flow through it until the canal cause them to further accumulate in the Cowhich was to dispose of them below had been lusa basin until they reached an elevation completed. Upon the hearing on this motion which placed the plaintiff's premises in imthe said court made an order approving the mediate danger of overflow. This was the plan of the drainage district for the construc- state of things when the plaintiff herein tion of the permanent works in the ridge and commenced the present action on February canal below for which it provided, and so 15, 1915. By this action and especially by modified its former injunction as to permit the temporary mandatory injunction applied the temporary penetration of the ridge ap- for therein, this plaintiff sought to have all plied for, specifically directing how such obstructions removed from the top of the work should be done, and providing for the ridge to the eastward of her lands which inrestoration of the ridge to its former state terfered with the free passage of the flood when the dredgers had sufficiently done the waters of the Colusa basin over the ridge at work for the doing of which passage through their former point of exit when they attainthe ridge was required. The order also pro ed a height in excess of 39 feet; or, in other vided that all of this work should be com- words, to have the natural elevation of the pleted on or before October 15, 1914, or at ridge at these points restored. Upon the such further time as the court should direct. hearing of the application for this temporary The defendants in said action, having pro- order much testimony was presented, after cured the foregoing order, dismissed their the hearing of which the court made the appeal from the previous judgment of in-order for such mandatory injunction penjunction; and pursuant to such modifica- | dente lite, from which this appeal has been tion thereof, the drainage district began taken. making the excavation of the ridge in ac- Reclamation District No. 730 lies, as to the cordance with the direction thereof. Ida B. lands included within it, to the southward of Piper, the plaintiff in the present action, was Knights Landing ridge, in the Yolo basin. not a party to the former action and does Neither it nor other appellants herein were not appear to have interposed any objection parties directly engaged in the performance to the progress of the work being done by of the work of making the cut through the the drainage district by virtue of the terms ridge or the canal below, provided for in the of the act of its creation nor by virtue of act of the Legislature creating the Knights the modification of the injunction granted in Landing drainage district. The interest of the former case. The work proceeded to these appellants in seeking to prevent the the point of the refilling of the gap in the flood waters of the Colusa basin from overridge so as to put the same in condition to topping the Knights Landing ridge was priprevent any water from flowing through or marily that of preventing the overflow of said over it until the lower work upon the canal waters upon their own lands. Knights Landhad been completed. In order to do this the ing Ridge drainage district, which had imdrainage district apparently deemed it neces- mediately in charge the making of said cut sary to raise the summit of the ridge at the and the construction of the canal below it, point of the cut and for some distance on was also made a party to this action and was both sides of the same to such a height as present by counsel in court when the hearing would prevent any waters from passing over was had upon the application of the plaintiff it in that vicinity even at extreme high water for this injunction and offered no resistance in times of flood. Accordingly, the top of to the granting of the same, although said inthe ridge was raised from its former natural junction was mandatory in character and reelevation of 39 feet at points to the eastward quired the removal of the more permanent of the plaintiff's lands, to an elevation of portion of the obstruction of the passage of from 48 to 50 feet. Not long thereafter oc- these waters over said ridge which had been curred the heavy flood of the winter of 1914-placed there by said drainage district in the 15, said to be the largest flood known in the course of making said cut. It would seem history of the region, reaching its maximum in February of the latter year, as a result of to be manifest, therefore, that the effect of which the Colusa basin filled and the waters the removal of the obstruction from the ridge threatened to cross the ridge at points to the provided for by the order complained of by easterly of the plaintiff's premises. In order the other defendants, who are the appellants to prevent this result, Reclamation District herein, would not be that of causing any in730, one of the defendants and appellants jury to the construction work which had been herein, caused to be constructed a temporary or was in process of being done by the drainsack levee along the top of the ridge extend- age district, but would be merely that of pering further westward from the point where mitting the accumulating waters of the Cothe increase of elevation accomplished by lusa basin to pass over said ridge, as forthe work of the drainage district had ceased, merly, at the point of its lowest natural level

and flow down into the Yolo basin and thus | nearly resembles the case at bar in the rereach and overflow the lower lands of the appellants herein.

[1-3] In the case at bar the trial court, upon the hearing of the application for a temporary injunction, was presented with an extraordinary situation. It was a time of most unusual storm and flood. The Colusa basin had become surcharged with waters which were steadily rising and threatening to obliterate the levees which had been built for the protection of the several reclamation dis

spect that in that case each of the parties thereto were private parties occupying the The foregoing review of the facts of this relation of upper and lower owners of lands case removes from our consideration in con- across which there was a depression wherein nection with it a number of the questions surface waters were collected in the winter which were involved and elaborately consid-season and into which at times the flood waered in the case of Gray v. Reclamation Dis-ters of Mormon slough overflowed and intertrict No. 1500, 174 Cal. 622, 163 Pac. 1024, mingling there with the surface waters dewherein it was held that the defendant in scended from the plaintiff's to the defendthat action, while engaged in carrying for- ant's lands. The defendant undertook to so ward the plans adopted by both the federal obstruct this depression as to prevent the and state governments for the confinement of flow of both sorts of waters upon his land the waters of the Sacramento river to their and to cause them to collect upon and flood natural channel, thus increasing the navi- the plaintiff's land. The court in that case gability of the river and thus also accom- held that the defendant, while he had the plishing the reclamation of the vast tracts of right to protect his land from the overflow low-lying land comprising the several basins waters of Mormon slough, had no right to adjacent to the course of said river, could obstruct the downward flow of the surface not be prevented from proceeding with such waters in their natural and accustomed work at the suit of some landowner in one course from the plaintiff's lands to his own, of said basins who might be temporarily in- and that in connection with whatever objured by the overflow of his lands consequent struction he constructed against the overflow upon the prosecution of such work, and that waters of Mormon slough he must have first the injury of such landowner was in such a provided for a sufficient canal or ditch to case damnum absque injuria. The court also carry all such surface waters as were accusin that case decided that the several basins tomed to flow in said depression from the lying along the west side of the Sacramento plaintiff's lands to his own. river did not possess the characteristics of water courses as that term is therein defined so as to require that all waters that might from any source be collected in them were to be permitted to take their natural course without obstruction. The court also decided in the same case that the conditions which existed along the west side of the Sacramento river in respect to these several basins and their collected waters were not those pre-tricts in the region and even to destroy the sented for consideration in the case of Miller & Lux v. Madera Canal, etc., Co., 155 Cal. 59, 90 Pac. 502, 22 L. R. A. (N. S.) 391, wherein the annually recurring floods made the stream wider during the period of such floods so as to include therein adjoining lands, in which case such regularly recurring flood waters were to be deemed a part of the ordinary flow of the stream. The chief point of departure between the case of Gray v. Reclamation District No. 1500, supra, and the case at bar arises from the fact that in the Gray Case the defendant was acting in accordance with the declared policy of the state and federal governments in their combined efforts to increase the navigability of the Sacramento river by confining its waters to their natural channel and also to work the reclamation of the vast areas of fertile land belonging to the state or its citizens, lying within these several basins along both sides of the river; while in the instant case the defendants were acting in the purely private capacity of seeking to protect their lower-lying lands from overflow, and were not in so doing promoting either of the public purposes commended by the court in the Gray Case. The case of Sanguinetti v. Pock, 136 Cal. 466, 69 Pac. 98, 89 Am. St. Rep. 169, in some of its aspects more

embankment and sack levees along the top of the ridge and descend in destructive volume upon the lower lands. Another storm was impending. If the plaintiff was refused the immediate relief demanded it was made to appear that not only her lands but also the lands of other and more remote owners along the ridge would also be overflowed. The vol ume of the rising waters consisted of intermingled surface and flood waters, the proportion of each being impossible of speedy or exact ascertainment. The particular defendant which had placed the main and more permanent obstructions along the tops of the levee at its point of lowest elevation was not objecting to the removal of the material which had been placed there by it, and thus evidently did not anticipate any substantial injury to the work it had been carrying on by the restoration of the ridge at that point to its former natural elevation. If this were done the maintenance or removal of the temporary sack levees which had been put in place by the other defendants would become inconsequential, since the overflow waters would pass over the lowest part of the ridge and to the eastward of said defendants' lands. Under such unusual and extraordinary conditions the trial court was invested with a very

large discretion as to what temporary and further ground that the Knights Landing immediate order should be made in the prem- ridge has been cut and the by-pass and levees ises, and unless it should be made to very constructed under and in accordance with the clearly appear that such discretion had been Statute of 1913 providing therefor and which abused its order so made should be sustain- will hereafter conduct the waters of the ed. Conceding the right of the appellants to Colusa basin through the ridge and into the protect their lands from overflow by such of Yolo by-pass, thus avoiding future floods. As the accumulated waters of the Colusa basin to the first of these grounds the motion is as were strictly flood waters from the Sacra- clearly not good, for to hold otherwise would mento river under the authority of Sanguin- be to deprive a party rightfully resisting an etti v. Pock, supra, they had not the right un- improper preliminary mandatory injunction der the same authority to maintain obstruc- of his remedy for costs and damages by the tions upon the ridge which would also have simple process of executing the unlawful orthe effect of restraining such of said waters der. As to the second ground of said motion, as were strictly surface waters, from passing while it may be true in the instant case that over the ridge at its lowest point of natural the removal of the source of trouble may elevation in their accustomed course and have rendered unimportant its final deterway. Whether it was possible in the emer-mination, still the appellants, had our congencies of the moment to make a practical clusion been otherwise as to the right of the order which should undertake to distinguish | trial court to make the order complained of, · and divide these rising waters and the right would have been entitled to their damages of the respective parties as to their retention and costs as a result of a reversal of such or passage was a matter intrusted almost en- order; besides, the questions involved are tirely to the trial court's discretion. In the of wider moment than the particular case case of Miller & Lux v. Madera Canal Co. because of the great importance to the state supra, the rule, as well stated by Mr. Justice of California of the settlement of the law reSloss, is applicable to the extreme conditions lating to the waters and adjoined lands of its presented by the case at bar: two great internal waterways. The motion to dismiss is denied. The order is affirmed.

"It would be superfluous to cite authorities to show that the granting or refusing of a preliminary injunction is a matter resting largely in the discretion of the trial court. Where there is a substantial conflict in the evidence J.; WILBUR, J.; SLOSS, J.; MELVIN, regarding an issue which may affect the discre

We concur: ANGELLOTTI, C. J.; SHAW,

tion of the court in passing upon the applica-J.; LORIGAN, J.

tion for such injunction, the order made will not on appeal be overthrown merely because there may be considerable or even preponderating evidence which, if believed, would have led to a contrary conclusion. The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the rights claimed by him."

[4] In the case of Jones v. California Development Co., 173 Cal. 565, 160 Pac. 823, L. R. A. 1917C, 1021, the court, quoting from 3 Farnham, Water & Water Rights, § 889, declared that:

"No arbitrary rule can be laid down which will govern all cases, but each case must be dealt with upon its facts, applying the rule which will be reasonable under the circumstances, under the general rule that the water should be allowed, as far as possible, to seek its natural outlet."

Upon these authorities, from a careful examination of the record before us, we are unable to say that there was any abuse of discretion on the part of the trial court in making the order complained of.

[5, 6] In this case the respondent moved the dismissal of the appeal upon the ground that the questions involved therein had become moot questions for the reason that the things commanded to be done by the mandatory injunction had been done, and upon the

(89 Or. 659)

In re CHEWAUCAN RIVER. Appeal of NORTHWEST TOWNSITE CO. et al.

(Supreme Court of Oregon. Oct. 8, 1918.) 1. APPEAL AND ERROR 1-RIGHT OF AP

PEAL-STATUTE.

No appeal exists as a matter of right, but must be founded on statute.

2. APPEAL AND ERROR 634-DISMISSAL OF APPEAL-POLICY OF COURT.

In view of the statute and rules of court which, where good faith is shown, provide for any amendment necessary to perfect appeal after notice of appeal and after Supreme Court bas acquired jurisdiction, it is Supreme Court's policy to sustain rather than to dismiss an appeal.

3. APPEAL AND ERROR 426-NOTICE OF APPEAL JURISDICTION OF SUPREME COURT -STATUTE.

The appellate court has no legal discretion over the service of the notice of appeal, and to give the Supreme Court jurisdiction on the merits there must be a strict compliance with L. O. L. § 550, as amended by Laws 1913, p. 617, providing for the service of notice of appeal.

4. APPEARANCE 9(1)—“GENERAL APPEAR

ANCE."

A "general appearance" must be express or implied from defendant's taking of some step in a cause beneficial to himself or detrimental to plaintiff other than one contesting the jurisdic