Eddy v. Simpson

Wells, Justice, delivered the opinion of the court. Heydenfeldt, Justice, concurred.

From the record in this case, it appears that the plaintiffs constructed a dam across a stream called Shady Creek to French Corral, where the water was used by plaintiffs for mining purposes.

After the construction of plaintiffs’ work, and plaintiffs had been for a considerable time in possession of and using the waters of Shady Creek, the defendants constructed a work of a similar nature, whereby they brought water from Grizzly Cannon and Bloody Bun, to a place known as Cherokee Corral, where the water from defendants’ ditch was used for mining purposes. The water thus used by defendants at Cherokee Corral, from that point found its way by natural channels and by the natural level of the country, into the waters of Shady Creek, above the dam of plaintiffs.

The defendants subsequently constructed a dam above the plaintiffs’ dam, run a ditch to French Corral, and diverted a portion of the waters of Shady Creek, so that at times no water descended to plaintiffs’ works, the entire quantity being used by defendants’ ditch above.

The point made by the defence, on the trial of the cause below, was, that by the act of the defendants the waters of Grizzly [252]Cannon and Bloody Run, were caused to flow into Shady Creek ; that therefore the defendants had a right to construct a dam and ditch above plaintiffs, and carry off the same quantity of water from Shady Creek, that flowed from defendants’ ditch at Cherokee Corral.

This defence is set up substantially in the answer of defendants, and the court below held, that defendants had an exclusive right to the water which they had caused to flow into Shady Creek, and could withdraw the same. The instruction refused and the charge given by the court, both assume this right in the defendants.

In considering the question presented, it is to be observed, that the foundation of the plaintiffs’ right was their first possession. Of all the waters running into Shady Creek, they were in the possession and use until defendants constructed their ditch above them, running to French Corral. There is no pretence of right in the defendants to carry off water from Shady Creek, except a claim of property in the water from Cherokee Corral.

It is laid down by our law writers, that the right of property in water is usufructuary, and consists not so much of the fluid itself as the advantage of its use.