McKinney v. Smith

California Supreme Court Jul 1, 1863Published

Before: Norton

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Holding. The court held that an appropriation of water for a specific, limited purpose does not grant a right to all the water in a stream, and subsequent attempts to use surplus water for different purposes cannot infringe upon the rights of intervening appropriators.

Issues

Whether the plaintiffs' initial diversion of water constituted a general appropriation of the entire stream or a limited appropriation for a specific purpose.
Whether the plaintiffs could maintain an action for damages against subsequent appropriators for water use at locations not covered by the original appropriation.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the taking up of the water of a stream for a particular purpose—to wit: to run a mill—was an appropriation of only so much of the water as was necessary for that purpose”

“at most the water was appropriated for a special and limited purpose”

“the Court below, under the rule cited from the case of Ortman v. Dixon, rightly decided that this action could not be maintained for damages”

Synopsis

The diversion of the waters of a stream with the object of drainage simply, or without the intention of applying them to some useful purpose, does not constitute an appropriation.

The taking up of the waters of a stream for a special limited purpose is an appropriation of only so much of the water as is necessary for that particular purpose. The surplus may be the subject of a new appropriation, which will give to the second locator a paramount right to the use of all the waters of the stream not required for the specific purpose of the first appropriation.

Plaintiffs constructed a dam across Clear Creek and dug a ditch for some distance along its bank, by means of which all the waters of the stream were diverted and returned to the creek at a point half a mile below. The object of the diversion was to drain the channel of the stream below the dam and supply water for working a tract of mining claims owned by plaintiffs in the bed of the stream. Subsequently defendants dug a ditch at a point above, through which they diverted the waters of the same stream for general mining purposes. Still later plaintiffs extended their ditch to other mining points and to agricultural land below, and used the water for mining and irrigating at these latter places. In an action by plaintiffs to recover for injuries occasioned by the diversion of defendants to the use of the water at the latter points to which plaintiffs’ ditch had been extended: Held, that the prior right of plaintiffs was limited to the use of the water for working their original claims in the bed of the stream; that as to the surplus above what wastirequired for that particular purpose, defendants’ right was paramount; and that plaintiffs could not recover.

In an action involving the right to and extent of a water privilege claimed by plaintiffs under an alleged appropriation by a number of copartners, defendants, to limit the extent of the appropriation, offered in evidence a paper, purporting to be a copy of the original locating notice of the copartners, and without direct proof of its execution, showed that it was prepared with a knowledge of some of the partners, and was seen as a posted notice by a portion of them at the point of diversion, and about the time the work was commenced, and that its position was such that it must probably have been seen by all: Held, that upon this proof the paper was admissible as part of the res gesta.

A new trial will not be ordered because of inaccuracy in the language of a finding of fact when it is sufficiently distinct as to the material question involved in the action.

Norton, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

The appropriation of the water of a stream in order to apply it to some useful purpose secures a right which cannot be infringed upon by a subsequent appropriation of the water by others. But in the case of Maeris v. Bicknell (7 Cal. 261) it was decided that diverting the water from its natural channel for the purpose of drainage simply is not an appropriation of the water. And in the case of Ortman v. Dixon (13 Cal. 33) it was decided that the taking up of the water of a stream for a particular purpose—to wit: to run a mill—was an appropriation of only so much of the water as was necessary for that purpose, and did not secure a right to all the water at that point, if there was more than enough for that purpose, and that a person so appropriating the water for the special purpose could not afterwards appropriate the surplus to the detriment of other persons who had in the interim appropriated that surplus.

In this case the plaintiffs and those under whom they claim built a dam across Clear Creek and by means of a ditch conducted all the water of the stream into Slate Gulch, through which, as a natural channel, it flowed back into Clear Creek at a point some distance below the dam. After their works were completed they [382]worked the bed of Clear Creek below the dam and above the mouth of Slate Gulch for mining purposes. Soon after the water was thus conducted into Slate Gulch, the defendants commenced a dam and ditches on Clear Creek, by means of which they appropriated the water for mining purposes at a point many miles above the plaintiff’s dam. After this the plaintiffs, by means of flumes and ditches, conducted the water from the point where it was first discharged into Slate Gulch across that gulch, and appropriated it to the use of mining and irrigating at points below Slate Gulch. The Court below found as a fact, that the turning the water from Clear Creek into Slate Gulch was a diversion to dispense with the water and not a diversion for appropriation. And as a conclusion of law, the Court decided that “ defendants being the prior locators were entitled to the use of the water, and that plaintiffs cannot maintain an action for damages for the causes set forth in the complaint.” The plaintiffs moved for a new trial, on the ground that the evidence was insufficient to justify the finding of facts upon which this conclusion is founded. The fact found upon which this conclusion rests is, that the turning of the water by the plaintiffs into Slate Gulch was a diversion to dispense with it and not to appropriate it.

McKinney v. Smith

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