Junkans v. Bergin
Before: Belcher
Synopsis
Wateb Bights—Appboebiation.—A subsequent appropriator of water from a natural stream has no right to destroy the ditch of a prior appropriator, or to materially diminish the quantity or deteriorate the quality of the water to which the latter is entitled.
Id.—Point of Divebsion hay be Changed.—One entitled to divert a quantity of water from a stream may take it at any point on the stream, and may change the joint of diversion at pleasure, if the rights of other appropriators be not injuriously affected by the change.
Id.—Finding—Evidence.—On a review of the evidence, held, that a finding of the court below as to the carrying capacity of the ditch of the plaintiff, and the amount of water to which he was entitled by appropriation, was justified, and that the defendants had diverted a portion of the water to which the plaintiff had. a prior right.
Belcher, C. C. This is an action to recover damages for the diversion of water, and for an injunction.
The case was tried by the court, and judgment rendered in favor of the defendants.
The plaintiff then moved for a new trial, which was denied, and the appeal is from the judgment and from the order denying the new trial.
It appears that the plaintiff owned two ditches in Trinity County, one known as the Perkins Bar Ditch, and the other as the Evans Bar Ditch, which took water from Perkins Creek and conducted it to Perkins Bar on the Trinity River, where it was used for mining. Perkins Creek had a tributary known as Maple Creek,, and the defendants had two ditches, one known as the Hop Lee Ditch and the other as the Fronte Ditch, which took water from Perkins Creek and conducted it to a point on Maple Creek, where it was used by them in mining.
The Perkins Bar Ditch had the oldest water right, and took its water from Perkins Creek, about half a mile above the mouth [268]of Maple Creek. The Evans Bar Ditch had the next oldest water right, and up to 1882 took its water from.' Perkins Creek, just below the mouth of Maple Creek. In that year, the dam which turned the water into the ditch was so filled up with tailings, which the defendants, by their mining operations on Maple Creek caused to flow down that creek, that it became very difficult and expensive to maintain it so as to keep the water flowing into the ditch, and the plaintiff then moved his dam up Perkins Creek to a point about fifty feet above the mouth of Maple Creek.
The defendants’ ditches were constructed after the plaintiff’s ditches, and took water from Perkins Creek above the head of the Perkins Bar Ditch. The defendants and their grantors had been using their ditches to conduct water from Perkins Creek to their mines on Maple Creek since 1877, till they were stopped from so doing by the temporary injunction issued in this case.
1. The court found the capacity of the Perkins Bar Ditch to be 247J inches of water, delivered under a five-incii pressure, and' that as appurtenant to that ditch the plaintiff had the first right to take that quantity of water from the creek.
The appellant claims that the quantity of water allowed for his, Perkins Bar Ditch, is too small, and that the finding limiting it to the quantity named is not supported by the evidence.
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