Hoffman v. Stone

Murray, C. J., delivered the opinion of the Court—Burnett, J., concurring.

The former decisions of this Court, in cases involving the right of parties to ajjpropriate waters for mining and other purposes, have been based upon the wants of the community and the peculiar condition of things in this state, (for which there is no precedent,) rather than any absolute rule of law governing such cases.

The absence of legislation on this subject, has devolved on the Courts the necessity of framing rules for the protection of this great interest, and in determining these questions, we have conformed, as nearly as possible, to the analogies of the common law.

[49]The fact early manifested itself, that the mines could not be successfully worked without a proprietorship in waters, and it was recognized and maintained. To. protect those who, by their energy, industry, and capital, had constructed canals and races, carrying water for miles into parts of the country which must have otherwise remained unfruitful and undeveloped, it was held that the first appropriator acquired a special property in the waters thus appropriated, and as a necessary consequence of such property, might invoke all legal remedies for its enjoyment or defence. A party appropriating water, has the sole and exclusive right to use the same for the purposes for which it was appropriated, and so long as he is not obstructed in the use thereof, he has no ground of action.

In the case before us, it is shown that Dutch Gulch was a mere torrent, dry at certain seasons of the year; that it was used by the defendants, as a part of their ditch, for conducting water from another stream down to their dam; that, in point of fact, the water so brought to Dutch Gulch, and turned in there by defendants, was not abandoned by them, but was turned in for the purpose of being conveyed to their dam, from whence it was afterwards diverted and sold by them; that there was, at the time of the commencement of this suit, no natural water flowing in the bed of the stream, and that all the waters so diverted by the defendants were artificial, or waters conducted there by them.

The plaintiffs being the prior locators, it would follow that any interference with the waters of Dutch Gulch would be an infraction of their rights. But the appropriation of the waters did not give them the exclusive use of the bed of the stream. We see no reason why it might not be used by others, as a channel for conducting water, so long as it did not interfere with their rights. If the defendants were diverting the natural water of the stream, as well as that brought into it by themselves, then the plaintiff would have a just cause of complaint.