Bear River & Auburn Water & Mining Co. v. New York Mining Co.

Burnett, T., after stating the facts, delivered the opinion of the Court—Terry, J., concurring. It may be said, with truth, that the judiciary of this State, has had thrown upon it, responsibilities not incurred by the Courts of any other State in the Union. In addition to those perplexing cases that must arise, in the nature of things, and especially in putting into practical operation, a new constitution and a new code of statutes, we have had.a large class of cases, unknown in the jurisprudence of our sister States. The mining interest of the State has grown up under the force of new and extraordinary circumstances, and in the absence of any specific and certain legislation to guide us. ■ Left without any direct precedent, as well as without specific legislation, we have been compelled to apply to this anomalous state of things the analogies of the common law, and the more expanded principles of equitable justice. There being no known system existing at the beginning, parties were left without any certain guide, and for that reason, have placed themselves in such conflicting positions that it is impossible to render any decision that will not produce great injury, not only to the parties immediately connected with the suit, but to large bodies of men, who, though no formal parties to the record, must be deeply affected by the decision. Eo class of cases can arise more difficult of a just solution, or more distressing in practical result. And the present is one of the most difficult of that most perplexing class of cases.

The business of gold-mining was not only new to our people; and the cases arising from it, new to our Courts, and without judicial or legislative precedent, either in our own country or in that from which we have borrowed our jurisprudence; but there are intrinsic difficulties in the subject itself, that it is almost impossible to settle satisfactorily, even by the application to them of the abstract principles of justice. Yet we are compelled to decide these cases, because they must be settled in some way, [333]whether we can say after it is done, that we have given a just decision or not.

The use of water for domestic purposes, and for the watering of stock, are preferred uses, because essential to sustain life. Other uses must be subordinate to these. In such cases, the element is entirely consumed. ¡Next to these, may properly be placed, the use of water for irrigation in dry and arid countries. In such cases, the element is also entirely consumed. Under a proper system of irrigation, only so much water is taken from the stream as may be needed, and the whole is absorbed or evaporated. Entire absorption is the contemplated result of irrigation. When properly used, as a motive power for propelling machinery, the element is not injured, because the slight evaporation occasioned by the use is unavoidable, and is not esteemed by the law a substantial injury. Any number of riparian proprietors, can use the water as a motive power, in succession, without substantial injury to any other, for the element is just as good for the purposes of the last, as for those of the first proprietor.