David Josiah Brewer

“ In view of the finding of the supreme court we need not stop to consider any question in respect to the influence of the dam placed by appellee upon the flow of water in appellant's canal, and this notwithstanding the fact that in the trial of the case much of the testimony, pro and con, was in reference to that matter. We are concluded as to the question of fact by the finding, and it is familiar law that injunction will not issue to enforce a right that is doubtful, or to restrain an act the injurious consequences of which are merely trifling. ”

“ We are dealing with those which grow out of this contract, bearing in mind that all rights are reserved to the appellee which are not in terms granted to the appellant. If 7,000 inches of water was more than sufficient to supply the territory which it was then irrigating, there is nothing which forbade the appellee to enlarge that area, and in order to enable it to reach that larger area it might make any change in the construction of its canal-at least any change which did not interfere with the free delivery of the water by the appellant. ”

“ The appellant seems to be of the opinion that by that contract it had a right to raise its canal to such an elevation as it saw fit, while the appellee had no such liberty. We search the contract in vain for any express stipulation to that effect. If the appellant had a right to raise the grade of its canal 5 feet, we see nothing to forbid the appellee to raise its grade to the same height. There is no reference in the contract to water power. ”