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State, for mining and other purposes, has been too long settled to admit of any doubt or discussion at this time. Some of the older English authorities held that a right to water might be acquired by a riparian proprietor, by appropriation, and this court might, with propriety, have maintained the rights of water companies, on the ground that they were riparian owners; but it has based this right on the ground that the legislation of the State has given to every one, not only the privilege to work the "gold placers," but also to divert the streams for this and other purposes. The legislation of the State has been held to amount to a a general license to all,” (whether properly, is not for me to say, the point having been decided by a majority of the court against my own opinionsee Conger v. Weaver, 6 Cal. 518), and when these ditches have been constructed, they are regarded as a franchise or easement belonging to the proprietors, and are entitled to protection as any other property.

The only test as between parties, where the lands belong to the United States or this State, is priority of location, and whether a party locates above or below the claim of another, liis right depends or originates in appropriation alone; he inust take, subject to the higher right of those who were first in point of time to appropriate. If the parties both claimed as riparian proprietors, then each alike would be en. titled to the reasonable use of the water for the proper purposes. But in such case the supra riparian proprietor must so do the same as to do his neighbor the least possible injury, and the general rule is, that each riparian proprietor is entitled to the free use of the waters, pure and undiminished, except the deterioration or diminution be so slight or unimportant as not to materially diminish the quantity or quality.

Testing the case by this role, it might be asserted with confidence, that the facts of this case warranted a recovery. But when it is taken into consideration that the parties do not claim as owners of the soil, that none of the rules applicable to riparian proprietors apply, and that they both ground their respective rights upon their location, then the role which has been so often laid down by this court must apply, and he who has first diverted the waters of a stream, and appropriated them to his own use or purposes, must be

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held entitled to the exclusive enjoyment of the same, pure
and undiminished. By this, we do not mean to say that
those above him can not use the water for any purpose; the
use must be a reasonable one, and the injury or diminution
small or inconsiderable. Any other rule would destroy this in-
terest entirely as it would enable any person, hy locating above
the head of a ditch, to destroy the value and utility of the
same, and no man could count with safety upon his enterprise,
unless he commenced at the source of the stream.
posite rule would apply as well to the diversion, as to the
deterioration of the water, and after large suns had been ex-
pended in constructing a ditch, any one might render the
same worthless by locating a bove, and asserting his right to
divert the water. Froin these views it results that the in-
structions of the court below were erroneous.

Judgment reversed, and canse remanded.
On the application for a rehearing:

BURNETT, J.--This case was decided at the last term, and the opinion of the court was delivered by the late Chief Justice, in which I concurred. Since that opinion was delivered a petition was made for a rehearing by the counsel of defendants, and the case of the Bear River Company v. The New York Company, 8 Cal. 327, has been argnied and sul's mitted. Upon more full and mature consideration, I think the former opinion of the court should receive some qualification. My views may be found in my opinion in the case of the Bear River Co. v. New York Min. Co. The petition for a vehearing should be denied.




(8 California, 443. Supreme Court, 1857.)

Enlargement of ditch. The plaintiffs sought to recover on the ground

that defendants had enlarged their ditch since the commencement of plaintiffs' ditch: Held, that defendants were not limited to the quantity of water they had turned into their ditch in the first instance, unless

by the general plan, size and grade of the ditch, it was not capable of

carrying more water than was then diverted. If by reason of obstructions, or irregularity in grade, it was not capable

of conveying as much water as its general size would indicate, the defendants would have a reasonable time to adjust the grade and remove the obstructions, and then might fill the ditch to its capacity. But a failure for an unreasonable length of time to remove the obstructions or adjust the grade and to divert more water through their ditch

would limit them to the amount first diverted. Verdict against evidence-Conflicting testimony. The Supreme Court

will not disturb a verdict on the ground that it is against the evidence when the testimony is conflicting. Appeal from the District Court of the Eleventh Judicial District, County of Placer.

The defendants, a corporation for mining purposes, constructed a ditch, in 1851, taking water from the Volcano cañon, In 1852, the plaintiffs, or those under whoin they claim, constructed their ditch, tapping the same strearn at a point a short distance below. In their complaint, the plaintiffs allege that the ditch of defendants had been so enlarged since the date of the commencement of plaintiffs ditch, as to increase the volume of water running therein, to the injury of the plaintiffs. This allegation is denied in the answer. Upon the trial in the court below, the jury rendered a general verdict for defendants. The plaintiffs moved for a new

. trial, which being overruled, they appealed to this court.

The grounds of error assigned appear in the opinion of the court.

TUTTLE & Myers, for appellants.

Hale & Hillyer, for respondents.

BURNETT, J., delivered the opinion of the court, TERRY C. J., and Field, J., concurring.

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There are two errors assigned by the plaintiffs: 1. That the verdict was against the evidence. 2. That the court erred in giving and refusing instructions.

In reference to the fact as to whether the ditch of defendants had been enlarged so as to increase the flow of the water, the testimony was conflicting. The evidence fills somne fiftytwo pages of the transcript, and there was ample room allowed for the exercise of the discretion of the jury. It would be exceedingly difficult for any one to come to a satisfactory conclusion as to the real state of the case. And this uncertainty arises from the nature of the subject matter, and the want of exact estimates at the time. We therefore can not disturb the verdict upon the first ground assigned.

On the trial, the court gave this instruction: “In determining the quantity of water in the cañon, appropriated by defendants at the time of the construction of their ditch, which is conceded to have been constructed prior to that of plaintiffs, you will ascertain their intentions from their acts, the manner in which their ditch was constructed, the plan of the work, the general size, etc.

“They would not be limited to the quantity they have turned into their ditch in the first instance, unless by the general plan, size and grade of the ditch, it was not capable of carrying more water than was then diverted.

“ If by reason of boulders or stories in the sides and bottom of the ditch, or irregularity in the grade at that time, it was not capable of conveying as much water as its general size would indicate, the defendants wonld have a reasonable time to adjust the grade and remove such obstructions, and then fill the ditch to its capacity. But if they continued to divert t'ie quantity only that they originally turned into their ditch a sufficient length of time to indicate that they only intended t) divert that amount, or failed for an unreasonable length of time to remove such obstructions or adjust the grade of their ditch, they would be limited to the amount thus directed, and the plaintiffs would be entitled to the residne."

The plaintiffs excepted to the giving of this instruction, and offered the following, which the court refused to give, and the plaintiffs excepted:

6 What amount of water of Volcano cañon was in the possession, or actually appropriated by defendants or those under whom they claim, at the time of the completion of plaintiffs' ditch, and the actual appropriation of the waters of said cañon by plaintiffs, or those under whom they claim."

We think the instruction given by the court was correct, and entirely applicable to the state of facts proved before the jury. And it follows that if the court was correct in giving the instructions, the refusal to give the one offered by plaintit's was no error.

Judgment affirmed.


(10 California, 508. Supreme Court, 1858.)


Practice-Verdict of jnry. In an action for the diversion of water, the Su

preme Court will require a case of very palpable mistake or error to be made out, before it will overrule the verdict of the jury on issue of fact

joined. Diversion of water from choked ditch. In such an action, where both

parties claimed water from the same stream: Held, that defendant was not liable for deficiency of water in plaintiff's ditch, unless defendant was diverting more water than he was entitled to, at the precise time that such deficiency existed. Held further, that plaintiff could not recover for alleged diversion of water from one of his ditches, if the jury believed that at the time of the alleged diversion such ditch was so filled

up with tailings that it was incapable of carrying off the water itself. Surprise as ground for new trial-Nonsuit. A motion for new trial will

not be allowed on the ground of surprise, if ordinary prudence would have guarded against such surprise; besides, the plaintiff could have taken a nonsuit under $ 148 of the Practice Act.

Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.

This was an action to recover damages for the wrongful diversion of water from the plaintiff's ditch, and for an injunction restraining the defendant from the continuation thereof.

The complaint is in three counts.

The first count alleges that plaintiff, and those under whom he claims, located, took up, and appropriated the waters of Rabbit creek, in the county of Sierra, for the purpose of conveying the waters of the creek, and the intermediate waters flowing therein, to Spanish Flat, where the same were to be sold by plaintiff for mining purposes. That the appropriation of the waters by plaintiff was by means of a dam and ditch, commenced on the last day of November, 1853, and

* Approved, Nerada Co. v. Kidd, 37 Cal. 313.

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