plied grant-the result is the same. If regarded as an express grant from the government, it was a grant that did not specifically bound or define the right of way. While the land was still a part of the public domain, the way became definitely fixed and located along a certain line by the conduct of the grantees, the respondents here (14 Cyc. 1161; Winslow v. City of Vallejo, 148 Cal. 723, [113 Am. St. Rep. 349, 7 Ann. Cas. 851, 5 L. R. A. (N. S.) 851, 84 Pac. 191]); and when appellant's land acquired the impress of private property, the terms of the grant could not be changed, without his consent, so as to change the character of the easement or materially increase the burden of the servient estate. (McGuire v. Brown, 106 Cal. 660, [30 L. R. A. 384, 39 Pac. 1060]). If respondents' title be regarded as resting upon prescription-an implied grant-then for the purpose of determining its terms we must look to the nature of the enjoyment by which it was acquired; for, as provided by the code section already quoted, the nature of that enjoyment measures the extent of the servitude. [8] The nature of respondents' enjoyment of the servitude consisted in conducting water in an open earthen ditch that followed a certain well-defined and established course over appellant's land-a line that had been established for many years. That line, therefore, and none other, fixed the extent of the servitude that rested upon appellant's realty. (Allen v. San Jose L, & W. Co., 92 Cal. 138, [15 L. R. A. 93, 28 Pac. 215]; Vestal v. Young, supra.)

[9] The right of an appropriator of water upon government land that has since become private property to divert the water at any particular place of diversion, and conduct it to his own land over the land that has passed into private ownership, is the right of a grantee of an easement. As a primary easement it, of course, includes what are sometimes called "secondary easements, " or the right to do such things as are necessary for the full enjoyment of the easement itself, as, for example, the right to enter upon the servient tenement and make necessary repairs. But secondary easements do not give the owner of the primary easement the right to increase the burden upon the servient tenement. "The burden of the dominant tenement cannot be enlarged to the manifest injury of the servient estate by an alteration in the mode of enjoy. ing the former." (North Fork W. Co. v. Edwards, 121 Cal. 666, [54 Pac. 69]. The italics are ours.) [10] The right of

secondary easements is not a right to change the mode of enjoyment, if such change increases the burden upon the servient estate as would be the case if respondents shifted the line of their ditch every time a winter flood or spring freshet washed away or ate into the bank of the stream. (North Fork W. Co. v. Edwards, supra; Joseph v. Ager, 108 Cal. 517, [41 Pac. 422]; Oliver v. Agasse, 132 Cal. 297, [64 Pac. 401]; Snyder v. Colorado etc. Co., 181 Fed. 62, [104 C. C. A. 136].) [11] "The right to appropriate the waters of a stream does not carry with it the right to burden the lands of another with a ditch for the purpose of diverting the waters and carrying them to the place of intended use, for that cannot be done without a grant from the land owner, or a lawful exercise of the power of eminent domain; and this although the particular circumstances be such that the proposed appropriation cannot be effected without the ditch." (Snyder v. Colorado etc. Co.,

supra. The italics are ours.)

[12] Finally, it is contended that appellant is not entitled to any injunctive relief because an injunction is a matter, not of right, but of grace; and that greater injury will result in awarding than in withholding the injunction. The general principle that, when one without right attempts to appropriate the property of another by conduct which will ripen into an easement, a court of equity will compel the trespasser to undo, so far as possible, what he has wrongfully done, is too well established for discussion. [13] To this general rule there are a few well-recognized exceptions. Thus, it has been held that a court of equity may decline to issue a mandatory injunction where the defendant is engaged in a business that serves the public; or where, by innocent mistake, erections have been placed a little upon the plaintiff's land and the damage caused to defendant by their removal would be greatly disproportionate to the injury of which the plaintiff complains, and the defendant has proceeded with the erection while laboring under an innocent mistake of fact or a bona fide claim of right, and the plaintiff has been guilty of laches. (5 Pomeroy's Equitable Remedies, sec. 508; Szathmary v. Boston etc. Ry. Co., 214 Mass. 42, [100 N. E. 1107].) Respondents' contention is that their case presents features that bring it within these exceptions to the general rule. But the appellant here was not guilty of laches, and respondents did not complete the reconstructed ditch in good faith. A large

part of it was completed by them in the face of appellant's objection after the action was commenced and a restraining order issued the order that subsequently was dissolved.

[14] To justify the issuance of an injunction there must be substantial injury. Substantial “injury," however, does not necessarily involve substantial "damage." Where a valuable property right exists-no matter how small its value may be-and that right is substantially and materially interfered with by a nuisance caused by the wrongful use of the property by another, if the injury is of a continuing nature, requiring a multiplicity of suits to secure its redress, the injured owner of the right, if he be not himself at fault through laches or otherwise, is entitled to injunctive relief, not as a matter of discretion on the part of the court, but as a matter of right; and his right to this relief is not affected by any comparison of his loss with that resulting to the defendant by reason of the granting of the relief. [15] The rule that a chancellor will refuse to enjoin when greater injury will result from granting than from refusing an injunction has no application where the act complained of is in itself, as well as in its incidents, tortious. In such case it cannot be said that injury would result from an injunction, for no man can be heard to say that he is injured by being prevented from doing to the hurt of another that which he has no right to do. When a suitor has brought his cause clearly within the rules of equity jurisprudence, the relief he asks is demandable ex debito justitiae, and needs not to be implored ex gratia. There can be no balancing of conveniences when such balancing involves the preservation of an established right which will be extinguished if relief be not granted against one who would destroy ityea, though the right be but that of a peasant to but a part of his small tenement. (Walters v. McElroy, 151 Pa. 549, [25 Atl. 125]; Evans v. Fertilizing Co., 160 Pa. 209, [28 Atl. 702]; Sullivan v. Jones & L. Steel Co., 208 Pa. 540, [66 L. R. A. 712, 57 Atl. 1065]; Higgins v. Flemington Water Co., 36 N. J. Eq. 538; Bristol v. Palmer, 83 Vt. 54, [31 L. R. A. (N. S.) 887, and extended note, 74 Atl. 331]; Woodruff v. North Bloomfield Gravel Min. Co., 9 Sawy. 542, [18 Fed. 753]; Weimer v. Lowery, 11 Cal. 104; Gregory v. Nelson, 41 Cal. 278; Learned v. Castle, 78 Cal. 454, [21 Pac. 11]; Moore v. Clear Lake W. Works, 68 Cal. 146, [8 Pac. 816]; Heilbron v. Canal Co., 75

40 Cal. App.-9

Cal. 426, [7 Am. St. Rep. 183, 17 Pac. 535]; Allen v. San Jose L. & W. Co., supra; Allen v. Stowell, 145 Cal. 666, [104 Am. St. Rep. 80, 68 L. R. A. 223, 79 Pac. 371]; Vestal v. Young, supra.)

[16] The obvious distinction between injury and damage -a distinction not always observed when dealing with the question before us-is emphasized by Mr. Wood, who, speaking of a man's right of dominion over his property and the jealous care with which the courts have ever guarded this sacred right, says: "Whatever invades this right is a legal injury, whether damages ensue or not." (Wood on Nuisances, sec. 783. See, also, secs. 376, 782.) As is said in Learned v. Castle, supra, speaking of an injury to another's land that is a nuisance per se: "It is an injury to the right, and it cannot be continued because other persons (whether jurors or not) might have a low estimate of the damage which it causes. And especially is this so when the continuance of the wrongful act might ripen into a right in the nature of an easement or servitude. . . . The right to an injunction, therefore, in such a case does not depend upon the extent of the damage measured by a money standard-the maxim, De minimis, etc., does not apply." Though dissenting from the majority decision in Sullivan v. Jones & L. Steel Co., supra, Justice Mitchell was constrained to say that "where a clear legal right is being infringed, I agree that the remedy in equity is as mandatory as in law."

Respondents have cited a number of cases where equitable relief was refused on the ground that the injury was merely theoretical and the damage small. In so far as these were cases where injunctive relief was refused, it will be found on examination either that the injunction that was refused was an injunction pendente lite-as was the case in McGregor v. Silver King Min. Co., 14 Utah, 47, [60 Am. St. Rep. 883, 45 Pac. 1091]-or that the injunction was refused because there was no injury, the land having no value whatever-as was the case in Crescent Min. Co. v. Silver King Min. Co., 17 Utah, 444, [70 Am. St. Rep. 810, 54 Pac. 244], a decision by a divided court. [17] That the doctrine of the balance of convenience, so frequently determinative of the propriety of granting or denying a preliminary injunction, has no application to final decrees after hearing on plenary proofs, is

firmly established in this and other states.

(Richards v.

Dower, 64 Cal. 62, [28 Pac. 113]; note to Bristol v. Palmer, supra, 31 L. R. A. (N. S.) 882.) That an injunction may be refused where the property invaded is absolutely valueless is conceded. In such case there can be no real injury whatever. If the invaded property has no value, then, obviously, there can be nothing more than a mere theoretical injury, as was the case in Jacob v. Day, 111 Cal. 571, [44 Pac. 243]-one of the cases cited by respondents. Here appellant's property, wrongfully invaded by respondents, has some value, even though small, and his claim to damages at law is indisputable, even though, measured in dollars, the amount appears insignificant compared with respondents' investment. We know of no principle of law or power in a court of equity to justify or authorize an invasion of the property rights of one private party to serve the convenience or necessities of another private party. Such a principle, if once adopted by judicial tribunals, upon grounds of necessity, would, in its practical operation, result in a system of judicial condemnation of the property of one citizen to answer an assumed necessity or convenience of another citizen, and the sacred right of private property, so jealously guarded by courts in all Englishspeaking countries, would become but a shadowy unsubstantiality.

[18] If it was error to deny appellant a final decree granting him injunctive relief, what shall be said of a judgment that actually adjudges respondents to be the owners of an easement in that part of appellant's land upon which, as trespassers, they have wrongfully built a portion of their reconstructed ditch? Not only does the decree do this-it goes to the length of enjoining appellant from even asserting any right adverse to such easement. This is tantamount to an injunction enjoining appellant from ever bringing an action at law for the trespass, or from suing to recover the damage, however small, caused to his land by respondents' unauthorized invasion of his property. Such a judgment is clearly erroneous. The same error likewise inheres in and vitiates the findings. For this reason a new trial is unavoidable.

[19] 2. Appellant complains of that part of the decree which adjudges respondents to be the owners of all the surface waters of the creek up to sixty inches-the capacity of