Nevada Water Co. v. Powell
Before: Sawyer
Synopsis
Appropriation op Water by Dam and Ditch.—Where the Court instructed the i jury, in substance, that if plaintiff acquired the prior right to divert a portion of the water of Shady Creek, by means of a dam and ditch, and the dam and stream should at any subsequent time, by reason of mining by strangers above, become filled up to such an extent as to make it necessary to raise the dam higher than it originally was to enable the plaintiff to continue the diversion by means of said ditch, then the plaintiff is entitled to make additions to the height of the dam from time to time, as occasion requires, without limitation, and wholly irrespective of the effect of these additions upon the interests of other parties acquiring rights for mining and other purposes on the stream above, subsequent to said original appropriation of the waters of the stream : held, that the principle on which such instruction is founded is inadmissible and the instruction erroneous.
Idem.— Where plaintiff appropriated a portion of the waters of a stream, and diverted it by means of a dam and ditch, sufficient for the purpose in the natural condition of the stream as it then existed, it does not necessarily follow that he thereby acquires the right to raise his dam higher and higher, as occasion might require, to obviate obstructions to its use in the manner of its said original appropriation, occasioned by physical changes in the condition of the stream not anticipated, whether arising from natural or artificial causes.
Idem. — The question, what is the extent of the right originally acquired by plaintiff in such a caso to which all subsequently acquired rights must be subordinate, 5s one of fact, for the jury.
Idem.—If the plaintiff appropriated a portion of the waters of a stream, and constructed a ditch and dam, amply sufficient, under the conditions of the stream and the country as they then existed, to make the appropriation available, and thereby acquired the right to appropriate and use said portion of said waters in said manner only, this would not prevent or impair tho right of other parties to acquire a right to the surplus waters of the stream, or to its bed and banks, or the adjacent land, to any extent that should not interfere with rights previously acquired. And when the rights of the subsequent appropriates once attach, the prior appropriator cannot encroach upon them, by extending his rights beyond the first appropriation.
Idem.—In such a case, when the right has once vested in the subsequent appropriator, the prior appropriator would he no more justified in extending his claim, or changing the means of his appropriation, to the prejudice of the second appropriator, than the latter would he in encroaching upon the prior rights of the first. In such case, each appropriator is, in respect to the particular thing appropriated hy him, prior in time and exclusive in his right.
By the Court, Sawyer, J. : This is au action to recover damages for the destruction of an addition to a dam, by means of which the waters of Shady Creek were turned into plaintiff’s ditch, and to restrain defendants from tearing down any other addition that may be made. The defence is, that said addition so torn down was a nuisance to defendants’ mining claim.
The plaintiff’s testimony tended to show the following state of facts, viz: That plaintiff is the owner of a mining ditch cut for the purpose of conveying water from Shady Creek to French Corrall for mining and other purposes; that the right to the use of said waters of Shady Creek was acquired, and said ditch located, as early as 1850; that the water of Shady Creek was turned into said ditch by means of a dam constructed across said creek; that the original height of said dam was six feet, but that, more than five years before the commencement of this suit, plaintiff had raised it from time to time, till it had attained the height of twenty-four feet; that in the month of August, 1863, plain[116]tiff added from four to six feet more to the height of said dam; that said last addition was necessary in order to turn any portion of the waters of said creek into said ditch, and that this necessity was caused by the largely increased deposits of tailings in the bed of Shady Creek, which arose principally from mining operations conducted about two and a half miles above said dam, and partly from mining operations conducted upon the claim of defendants, by reason of which water and tailings were discharged into said creek, and flowed down to, and filled up said dam.
The defendants’ testimony tended to prove that in 1853 defendants and their grantors were the owners and in possession of certain mining claims located in the bed and on the banks of Shady Creek, about three fourths of a mile above plaintiff’s said dam; that said claims had been possessed and worked according to the mining customs from the date of their location to the present time; that, for the purpose of working said claims, defendants had a flume constructed above said claims, discharging at the lower end of their said ground; that, at the lower end of said flume, there was, up to 1863, a fall of from five to twenty feet; that in 1863 plaintiff raised said dam between five and six feet; that the bed of the creek was very flat, and in consequence of the raising of said dam the tailings were thrown back upon defendants’ claims, and defendants were entirely prevented from working the same; that said claims were valuable and could be profitably worked before said dam was thus raised; that the raising of the dam prevented their being worked, and that if the height of the dam should be reduced to the point from which it was raised in 1863, said claims could be again worked. Also, that, since the location of defendants’ claims, a large supply of water had been brought from distant streams through other ditches and poured into Shady Creek, above said dam and claims of plaintiff’s and defendants’, and that by means of this additional supply of water the amount discharged into Shady Creek was greatly increased, and that the greater portion of the tailings thus
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