McGillivray v. Evans

By the Court, Sawyer, J. This is an action for the partition of the water of a mining ditch, admitted to be owned by the parties as tenants in common. The three defendants are entitled to the first flow of twenty inches when the water is high, which, the Court finds, is to be measured without pressure. But in the summer, when the water is low, they are entitled to the first flow of one fourth of the whole, provided one fourth does not exceed twenty inches. The plaintiff is entitled to two fifths, and the defendants to three fifths of the remainder, after the twenty inches, or the one fourth at low ■water, has been taken out. The answer alleges, that, as between themselves, the twenty inches is owned jointly by all the defendants, and that the three fifths are owned by two of them only—but the Court does not find how the defendants hold, as between themselves. The defend[95]ants appear to use the water for mining purposes, and the plaintiff formerly used his for irrigating his garden, and for sale to miners—the parties dividing it among themselves. Upon the facts found, the Court ordered the water to be divided, according to the proportions ascertained to be owned by the plaintiff and defendants respectively, and appointed three Commissioners to make the division in pursuance of the order of the Court, and to report at the next term. Two of the Commissioners presented a report, in which they say: “We first, by means of a box and gate, placed in the end of said ditch where defendants were wont to take out their twenty inches of water, divided or separated from the main body of the first flow of the water twenty inches thereof, without pressure, in the same manner as it was measured when first sold in 1852, as directed by the Court in said order, so arranging the gate in the box as to slide up or down, as the quantity of water in the ditch varies, which said twenty inches of water we turned out to and set apart for said defendants, which will flow to them constantly all the year round. The balance or remaining portion of said water of said ditch, described in said commission, we divided at the lower end of said race between the plaintiff' and defendants, giving to the said plaintiff two fifths of the water, and to the defendants three fifths thereof. The said division of water was made in the following manner: After we had separated and set off to the defendants twenty inches of the first flow of the water (as it run in the ditch) we partitioned the balance by means of a division box, placed at the lower end of said ditch, with five equal apertures arranged side by side on the same level in such manner that the water of the ditch, whether low or high, will flow out through said five openings in equal quantities; three fifths of said balance of water, after flowing through three of said openings, falls into a ditch of the defendants and flows off to them, it being optional with them to keep it separated into three parts or to mingle it. The other two fifths of said balance of water flows through two of said apertures and falls into a ditch of the plaintiff, and thus flows to him.”