Davis v. Gale
Before: Sanderson
Synopsis
Prior Right to Water by Appropriation.—A person who has appropriated the water of a stream, and caused it to flow to a particular place by means of a ditch, for a special use, may afterwards change the use to which he first applied the water, and the place at which he used it, without losing his priority of right, as against one who has dug a ditch from the same stream before the change is made.
Idem.—One who has appropriated the water of a stream by means of a ditch for the purpose of working a particular mining claim, may, after he has worked out the claim and abandoned the same, extend his ditch and use the water at other points, and for a different purpose, without losing his priority of right as against one who afterwards dug a ditch from the same stream and appropriated water before the claim was worked out.
Right to Water.—Appropriation and use for a beneficial purpose are the tests of right to water in the mineral regions, while the place and character of its use are not such tests.
Abandonment of Water Right.—The facts that water was appropriated for a particular purpose, and that the purpose has been fully accomplished, and that when accomplished the appropriators dispersed and allowed a long time to elapse without using the ditch, and then sold it for a nominal sum, may be received in evidence as tending to show abandonment.
Idem.—One who has abandoned his prior right to the use of water cannot by afterwards making a sale of the same revive his prior right in favor of his grantees, even if the sale is made in good faith.
Statute of Limitations as to Water.—If one who has the prior right to the use of water permits another to acquire and hold for five years continuous adverse possession of the same, or any part thereof, he loses his right to the same or that part thereof which the adverse possessor enjoyed.
Turning Water into Stream without intending to Recapture it.—If two persons, one prior in point of time to the other, appropriate water from the same stream, by means of ditches, and a third person turns water into the stream from his ditch starting out of another stream, without the intention of recapturing it, the water thus turned in becomes publici juris, and belongs to the persons who appropriated the stream, according to their priority of right.
Rights of Prior Appropriator of Water.—If two persons appropriate water from the same stream, one prior in point of time to the other, and a third person builds a flume in the stream so as to increase the flow of water, the prior appropriator is first entitled to the increased flow of water, to the extent of his appropriation.
Statute of Limitations as to Water Eights.—If one who has taken adverse possession of water, as against a prior appropriator, suffers a portion of the same to flow down to accommodate miners working in the stream, this does not prejudice his adverse possession so as to prevent the Statute of Limitations from running.
By the Court, Sanderson, J.: Action to restrain the defendant from diverting the waters of Mormon Creek, in Tuolumne County, to the prejudice of the plaintiffs’ prior rights, and for damages already sustained. The case was tried with a jury in the Court below, and a general verdict in favor of the plaintiffs was rendered. Under the direction of the Court, the jury also rendered a special verdict, in view of which it was claimed by the defendant that the judgment should go with him. The Court held otherwise, and rendered a judgment for the plaintiffs for the amount of damages found.by the jury, and perpetually restraining the defendant from interfering with or diverting the waters of the creek at any time in such a manner as to interrupt or disturb the use of the plaintiffs to the extent of their interest therein, which was fixed at sixty-two inches. A motion for a new trial was made and denied.
The complaint is in the usual form in such cases. An appropriation and continuous use of the waters of Mormon Creek, running as far back as the spring of 1851, for mining and agricultural purposes, by means of a ditch dug for that purpose, is alleged; and also a subsequent diversion of the water to the prejudice of the plaintiffs by defendant, by means of a ditch which taps the creek at a point above that of the plaintiffs.
[31]The defendant denies the prior right of the plaintiffs, and sets up a prior right in himself, and avers an appropriation and continuous use of the waters of the creek to the capacity of his ditch, which is four hundred inches, for mining and agricultural purposes, from a date prior to the appropriation of the plaintiffs.
The defendant further alleges that the plaintiffs’ ditch was dug out and the waters of the creek appropriated by them or their grantors solely for the purpose of working a few mining claims which belonged to the first owners of the ditch; and that said claims were worked out, and, together with the ditch, abandoned by the then owners long prior to the time at which the plaintiffs became the owners or possessors of the ditch.
He further avers that he and his grantors have been in the quiet and peaceable possession of the waters of the creek to the full capacity of his ditch for about thirteen years, prior to the commencement of this action, without let or hindrance on the part of the plaintiffs or their grantors.
He also seeks the protection of the Statute of Limitations, and avers that neither the plaintiffs nor their grantors have been in the possession of the waters of the creek within five years next preceding the commencement of this action, except in subordination to the alleged right of the defendant to divert the same to the extent of four hundred inches.
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