Himes v. Johnson

Action fob. Diversion of Water—Parties—Tenants in Common.—In an action for the diversion of water from a ditch and land, owned by the plaintiff and others, his co-tenant is not a necessary party.

Id. —Relevancy of Evidence.—In such an action, testimony, as to the rights of persons on the stream below the premises of both plaintiff and defendant, can have no relevancy to the issue, and is therefore inadmissible.

Id.—Water Rights upon Public Lands—Instructions.—The Court (at the instance of the plaintiff) in effect instructed the jury, that the appropriator of the waters of a stream upon the public lands of the United States, for a useful purpose, acquired a right to the same against parties subsequently acquiring title from the government, and all other persons, except previous appropriators; and refused to instruct the jury (at the instance of the defendant), that such appropriation must have been made in the manner recognized by the local customs, laws, or decisions of the Courts of this State; but modified the same by striking out the words “ local customs,” and gave the instruction as modified.

Held: The objections to the instructions given were untenable, and the Court did not err in modifying the instruction asked for by defendant. Id.—Costs.—In an action for damages and an injunction, where the injunction is denied, a judgment for less than three hundred dollars does not carry costs.