HOFFMAN ET AL. V. STONE et al.

(7 California, 46. Supreme Court, 1857.)

Ravine used as ditch bed. A ditch owner may use a ravine as a connecting link between different portions of his ditch, and the fact that the water which at times flowed naturally into the ravine had been previously appropriated by others would not deprive him of this right; the appropriation of the water does not carry with it the exclusive use of the bed of the stream.

Prior appropriation. If the ditch owner divert the natural water of the stream as well as that brought into it by him, then the prior appropriator would have a cause of complaint.

Appeal from the District Court of the Eleventh Judicial District, County of El Dorado..

This was an action brought by the owners of a ditch (which received its supply of water from Dutch creek, or ravine, near its mouth), in El Dorado county, for the purpose of procuring a perpetual injunction against the defendants, restraining them from diverting or appropriating the waters of the said ravine, and also for the recovery of a small judgment against them, by way of damages. The defense was that Dutch ravine was usually a dry creek, affording no natural water during the summer months, and that the defendants, in order to connect two of their canals, had precipitated the water from the upper one into the creek, and taken the same out again, by means of a dam, into their lower ditch, and that they had not interfered with the natural water of said ravine. The case was tried by a jury, who found a special verdict, on which the court granted a perpetual injunction against the defendants, restraining them from diverting water from the main channel of Dutch creek, so as to prevent the same from flowing down said creek to the extent of the capacity of plaintiffs' ditch. Defendants appealed.

SANDERSON & HEWES, for appellants.

NEWELL & WILLIAMS, for respondents.

1 Richardson v. Kier, 4 M. R. 612.

MURRAY, C. J., delivered the opinion of the court, BURNETT, J., concurring.

The former decisions of this court, in cases involving the right of parties to appropriate waters for mining and other purposes, have been based upon the wants of the community and the peculiar condition of things in this State, for which there is no precedent, rather than any absolute rule of law governing such cases.

The absence of legislation on this subject, has devolved on the courts the necessity of framing rules for the protection of this great interest, and in determining these questions, we have conformed, as nearly as possible, to the analogies of the common law.

The fact early manifested itself, that the mines could not be successfully worked without a proprietorship in waters, and it was recognized and maintained. To protect those who, by their energy, industry and capital, had constructed canals and races, carrying water for miles into parts of the country which must have otherwise remained unfruitful and undeveloped, it was held that the first appropriator acquired a special property in the waters thus appropriated, and as a necessary consequence of such property, might invoke all legal remedies for its enjoyment or defense. A party appropriating water, has the sole and exclusive right to use the same for the purposes for which it was appropriated, and so long as he is not obstructed in the use thereof, he has no ground of action. In the case before us, it is shown that Dutch gulch was a mere torrent, dry at certain seasons of the year; that it was used by the defendants as a part of their ditch, for conducting water from another stream down to their dam; that in point of fact, the water so brought to Dutch gulch, and turned in there by defendants, was not abandoned by them, but was turned in for the purpose of being conveyed to their dam, from whence it was afterward diverted and sold by them; that there was, at the time of the commencement of this suit, no natural water flowing in the bed of the stream, and that all the waters so diverted by the defendants, were artificial, or waters conducted there by them.

The plaintiffs being the prior locators, it would follow that

any interference with the waters of Dutch gulch would be an infraction of their rights. But the appropriation of the waters did not give them the exclusive use of the bed of the stream. We see no reason why it might not be used by others, as a channel for conducting water, so long as it did not interfere with their rights. If the defendants were diverting the natural water of the stream, as well as that brought into it by themselves, then the plaintiff would have a just cause of complaint.

It would be a harsh rule, however, to require those engaged in these enterprises to construct an actual ditch along the whole route through which the waters were carried, and to refuse them the economy that nature occasionally afforded in the shape of a dry ravine, gulch or cañon. It is contended, however, that this case falls within the rule of Eddy et al. v. Simpson et al., 3 Cal. 249, and Kelly v. Natoma Water Co., 6 Cal. 105. We do not think so. The verdict of the jury finds that the water was not abandoned by the defendants and left to find its way by natural channels into Dutch gulch, but was turned in by the defendants making the gulch a connecting link of their ditch.

Under all the circumstances of the case, we do not see how the plaintiff is entitled to relief. It may very possibly happen, that at certain seasons of the year, the defendants' dam will obstruct the water running in the natural channel of the stream which, of right, belongs to the plaintiffs, and in that event, they would have their action. But at the date of the commencement of this suit, no such state of facts is shown to exist, and the plaintiffs are not entitled to any relief.

Judgment reversed.

1

PARKE ET AL. V. KILHAM.

(8 California, 77. Supreme Court, 1857.)

1 Locating claims-Reasonable diligence. In the locating of ditches, a base line is generally first run to ascertain whether the water in the stream can be made to flow to the point where it is intended to be used. The

1 Sieber v. Frink, 7 Colo.

line upon which the ditch is actually intended to be dug should afterward be run within a reasonable time, which must depend upon the circumstances of each particular case.

'Water rights-Estoppel. If those who have the prior right to water stand by and allow others to expend money and labor in appropriating the waters of a stream under the mistaken idea that they have the better right to the water, the first appropriators will be estopped from setting up their prior right.

Nuisance-Ditch wrongfully diverting water. An injury occasioned by the diversion of water is in the nature of a nuisance. To turn aside a useful element from the premises is as much a nuisance as to turn upon them a destructive element.

Joinder of co-tenants. In an action for diverting water by ditch, tenants in common should be joined. It would be error for them to sue separately.

Appeal from the District Court of the Fifth Judicial District, County of Amador.

On rehearing. Parke and Struck, the plaintiffs in the court below, brought this action to recover from defendant the use of the waters of the middle fork of Jackson creek, and for damages, alleging a priority of right thereto. The answer of defendant denied plaintiffs' priority, and claimed an exclusive right to the use of the waters of that stream. The testimony showed that plaintiffs' grantors about the first of December, 1852, located a mining claim on the creek, at a place called Elliott's Ranch, and in order to work it erected a small dam in the creek and turned a portion of the water into their claim, for mining purposes.

That in October, 1852, the grantors of defendants projected a line of ditch, by drawing a base line from the lower end thereof to a point on the creek some distance below Elliott's Ranch, where they designed erecting their dam, and at the same time put up notices on the creek of their intention to use and appropriate the waters thereof in their contemplated work.

That in the spring of 1853, when the ditch was nearly complete, they changed the upper part thereof so as to take the water out of the creek about one hundred rods above the mining ground occupied by plaintiffs' grantors.

That in doing this, they ran the ditch through the Elliott Ranch, and paid Elliott, who was one of plaintiffs' grantors, a

1 Golden Terra Co. v. Mahler, 4 M. R. 390.

small sum for the right of way, and agreed to give him some water for irrigating purposes. There was some testimony going to show that plaintiffs' grantors had witnessed the appropriation of the water by defendant's grantors, and had acquiesced therein.

6

On the trial, defendant's counsel asked the court to instruct the jury "that if those from and through whom the plaintiffs claim had the prior right to the waters in the middle fork of Jackson creek, and they stood by and saw' those from whom defendant derives his title to the ditch and the right to the waters of the said creek, appropriate the water of the creek, at a great expenditure of money and labor, under the mistaken idea that the defendant's vendors were obtaining the first appropriation, and did not inform them of the mistake, that they, plaintiffs' vendors, and the plaintiffs, who claim under them, are estopped from setting up their prior right at this time." This instruction the court refused to give, and defendant excepted.

Plaintiff had a verdict for a small money judgment and for one hundred inches of water. The defendant moved for a new trial, which being denied, he appealed.

ROBINSON, BEATTY & BOTTS, for appellant.

SMITH & HARDY, for respondents.

BURNETT, J., delivered the opinion of the court, MURRAY, C. J., concurring.

This case was decided at the last April term of this court, and a re-argument had at the present time. We are satisfied, upon a more full argument and a more careful consideration of the case, that the judgment of the court below should be reversed, and a new trial had. The learned counsel for the defendant insists that we did not correctly understand him, when we said, in a former opinion, that "this position is based upon the idea that the proper point could not be designated with certainty by a proper survey, but must be determined by the actual construction of the ditch."

Taking the language of the brief in connection with the facts as proved, we did so understand the counsel. It was