Kidd v. Laird
Before: Cope
Synopsis
A statement on motion for new trial signed by the Judge, and appearing, from the minutes of the Court, to have been used on the hearing of the motion, is sufficiently authenticated. The statute points out no mode of authentication, and any satisfactory evidence in the record, in some legitimate and proper form, that, the statement has been examined and approved by the Judge, is sufficient.
Running water, so long as it continues to flow in its natural course, cannot be made the subject of private ownership. A right may be acquired to its use, which will be regarded and protected as property, but this right carries with it no specific property in the water itself.
The owner of a ditch has the exclusive and absolute power of control, and right of enjoyment, of the water diverted by and flowing in his ditch, but whether such water be his private property, it is not necessary to decide.
A person entitled to divert a given quantity of the water of a stream, may take the same at any point on the stream, and may change the point of diversion at pleasure, if the rights of others be not injuriously affected by the change.
This right so to change the point of diversion does not depend upon how the right to the use of the water was acquired, whether by express grant or by prescription ; or whether it rests in the parol license, or the presumed consent of the proprietor. The difference as to the source of the right relates to the mode of determining its existence and extent, and not to the manner of its exercise and enjoyment.
In this case, the rights of both parties, as fixed by the priority and extent of their respective appropriations, though not founded on the legal title, are as perfect and absolute as if acquired by prescription, or express grant from the riparian owner.
Where there are several separate defenses, each of which is sufficient to defeat the action, and these defenses are submitted to the jury, with evidence in support of each, and the verdict is general for the defendants, it cannot be set aside, if it bo right as to any one issue, though wrong as to all the others.
A verdict found on any fact or title distinctly put in issue, is conclusive in another action between the same parties or their privies in respect of the same fact or title.
But the fact or title must be material and relevant; must be distinctly in issue; must be tried by the jury, and constitute the basis of their verdict; and, unless specially found, must have been necessarily passed upon by the jury.
Where a verdict is general, its effect will be limited to such issues as necessarily controlled the action of the jury.
Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring.
The objection to the authentication of the statement on the motion for a new trial, is not well taken. The statement is signed by the Judge, and the minutes of the Court show that it was used on the hearing of the motion. No mode of authentication is pointed out by the statute, and any satisfactory evidence that the statement has been examined and approved by the Judge, is sufficient. This evidence, must, of course, appear in the record, in some legitimate and proper form.
This is an action to recover damages for the diversion of water from Deer creek, in Nevada county. The complaint sets forth that the plaintiffs are the owners of two certain ditches, by means of which they appropriated the water of that stream for mining purposes, and that the defendants wrongfully diverted such water, and deprived the plaintiff's of the use of the same, to their damage, etc. The answer admits the existence and ownership of these ditches, but denies that the plaintiffs appropriated the whole of the water of the stream, and denies that the defendants diverted any portion of the water to which the plaintiffs were entitled. The answer states, among other things, that the defendants are also the owners of certain ditches, by means of which they appropriated the- surplus water of the stream, over and above the quantity appropriated by the plaintiffs; that neither of the plaintiffs’ ditches, as originally constructed, possessed the capacity to convey more than one hundred inches of water; and that since the appropriation by the defendant, these ditches have been greatly enlarged, and their capacity materially increased. It states, further, that the plaintiffs are the owners of certain other ditches tapping the stream at different points above the ditches mentioned in the complaint, and that at the time during which it is averred that the defendants wrongfully diverted the water, the plaintiffs were themselves diverting, through such other ditches, the entire quantity to which they were in any manner entitled. The answer contains several other defenses, but a particular reference to them is unnecessary for the purposes of this opinion.
[178]The ditches from which it is claimed that water has been improperly diverted by the defendants are situated on the north side of Deer creek—one of them is called the Deer Creek ditch, and the other the Coyote ditch. The other ditches belonging to the plaintiffs are; 1st. The Deer Creek Mining Co. ditch, on the south side of the stream; 2d. The Big Snow Mountain ditch, on the north side of the stream; and, 3d. The Little Snow Mountain ditch, on the same side. These ditches tap the stream in the order above enumerated. The defendants’ ditches are: 1st. The ditch known as Laird’s Gold Flat ditch, situated on the south side of the stream, below all the ditches of the plaintiffs ; and, 2d. Laird’s new ditch, on the north side of the stream, between the plaintiffs’ Coyote ditch and their Big Snow Mountain ditch. The diversion of water through the latter ditch of the defendants constitutes the cause of action stated in the complaint.
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