Hill v. King

At the July Term, Murray, C. J., delivered the opinion of the Court—Burnett, J., concurring. The only question involved in this case, is, whether the proprietors of a water-ditch can maintain an action against the subsequent locators of mining-claims for a deterioration or diminution of wafer so appropriated.

It has been repeatedly held by this Court, that as against those locating below the head of a ditch or point where the water is diverted from the stream, the owners of such ditch, if their appropriation of the water was prior to the location of mining or other claims had a superior right, and might protect it by the ordinary remedies known to the law. The only difference between this case, and those heretofore decided, consists in the fact, that the defendants’ claims are above and not below the head of the plaintiff’s ditch.

It is difficult to discover why the principle which governs one case should not be equally applicable to the other, or why, if the law gives to the first apropriator a right to the use of the water, pure and undiminished, as against the subsequent appropriator [338]below, he should be allowed by a mere change of position to evade the consequences of the rule, and to place himself in a position which would destroy the rights of the first appropriator.

The right to appropriate the waters of the streams of this State, for mining and other purposes, has been too long settled to admit of any doubt or discussion at this time. Some of the older English authorities held that a right to water might be acquired by a riparian proprietor, by appropriation, and this Court might, with propriety, have maintained the rights of water-companies, on the ground that they were riparian owners; but it has based this right on the ground that the legislation of the State has given to every one, not only a privilege to work the “ gold placers,” but also to divert the streams for this and other purposes. The legislation of the State has been held to amount to a “general license to all,” (whether properly, is not for me to say, the point having been decided by a majority of the Court against my own opinion—see Conger v. Weaver, October 2, 1856,) and when these ditches have been constructed, they are regarded as a franchise or easement, belonging to the proprietors, and are entitled to protection as any other property.