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the Gregory ditch, after being used in mining, was discharged into Campbell's ravine, and found its way, with the gravel and sediment carried with it, back into Saw Mill ravine, below the damn of defendants, but above both the dams of plaintiffs.

"The gravel and sediment coming down Saw Mill ravine sometimes obstructed the upper dam and trough of plaintiffs, so that sufficient water could not pass through to propel the machinery for the ventilation of their tunnel. There is no evidence to show any obstruction to the dam or ditch of plaintiffs further down the ravine, located in 1853.

" In November, 1859, the plaintiffs selected a point upon Saw Mill ravine, some distance above the damn of defendants for the purpose of erecting a new dam, by which to divert the water at that point through a ditch intended to be dug by plaintiff's to convey the water to certain claims on the east bank of the ravine. This contemplated ditch would have diverted, the water entirely from the defendants' dam and ditch. From this point on the ravine, selected for their dam and reservoir, the plaintiffs were ousted by the defendants, and defendants themselves erected a reservoir at that point. There is no ditch connection with this reservoir, its object being by the defendants to collect the water during the night for use during the day further down the ravine.

“Plaintiffs allege that had they been permitted to divert the water at the point selected by them in November, 1859, they could have sold the water they intended to convey for at least ten dollars per day, from the eighteenth of November until the trial of this cause; and being prevented by detendants, they have been damnified to that extent, and pray judgment. They further allege that they have been damni. fied ten dollars per day by the wrongful acts of defendants in diverting the water from the small dam of plaintiffs by Taich the water was diverted to the tunnel of plaintiffs, from the eighteenth of November until the present time, and pray jndgment.

“ The complaint claims the ownership of the entire water of Saw Mill ravine, with its tributaries, from the dan of plaintiffs, located in 1853 by Lehman & Co., to the source of the l'avine, with the exception of that portion appropriated by

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the Gregory ditch; and upon this proposition of ownership from their dam to the source of the ravine, claim the right to divert the water at any point, or at any time they may see proper, without reference to any rights that may have arisen above their dam since its location, in November, 1853."

The judge below then cites Kidd v. Laird, 15 Cal. 161; Bear River Co. v. York Mining Co. 8 Id. 327; Butte Canal Co. v. Vaughn, 11 Id. 143, and then proceeds:

“ Under these decisions, plaintiffs, by the location of their ditch in 1853, were entitled to the water of the ravine in quantity sufficient to fill their ditch; that quantity they were entitled to have flow to them undiminished and uninterrupted; but if deteriorated in quality, they could not complain, unless the language in the Butte Canal Co. v. Vaughn, was intended to modify the proposition in the Bear River Co. v. York Mining Co., and if so, then the plaintiff's had the right to insist that the water flowing to them should not be so impaired in quality as to defeat the purpose of their appropriation. This was the extent of their rights and no more. Subject to those rights, defendants might locate above them, and use the waters of Saw Mill ravine as they might see proper. When such location and appropriation of the water had been made by defendants, their right to the use and enjoyment of the water was as proper as that of plaintiffs. The plaintiffs could no more turn the water away from the dam of defendants located in 1855, than the defendants could divert the water from the dain of the plaintiffs located in 1853.

“ The defendants could impose no more conditions upon plaintiffs respecting the use of the water by the plaintiffs at their dain of 1853, and after the location of defendants' dain in 1855, plaintiff's could impose no conditions upon defendants, as to the use of the water, other than those that existed in favor of plaintiffs prior to the appropriation of defendants. The same rule would follow as to each subsequent appropriation of the water of the ravine, and each subsequent locator takes the use of the water, subject to the conditions imposed upon the use of the water by the appropriation made in 1855.

“But, ask the plaintiffs, can we not change our location, and tap the stream at a different point? Certainly, this can be done, as decided in Kidd v. Laird, but with this proviso, that the change of location shall not injuriously affect the rights of others. When the defendants located their dam in 1855, and appropriated the water of the ravine at that point to the extent of the capacity of their ditch, they acquired the same right to the use of the water, as against subsequent locators above them, as the plaintiffs acquired by the location of its dam in 1853; that is, the defendants acquired the right to demand that the water from above should flow to them undi. minished in quantity, uninterrupted in flow, and not so impaired in quality as to defeat the purpose of their appropriation. The plaintiff's would have no more right to infringe these conditions imposed upon the use of the water by defendants, by going above defendants and locating a new dam, than a stranger.

“ The complaint alleges that one right of damages accrued to plaintiffs by the defendants refusing to permit plaintiffs to tap the stream above the dam of defendants, and convey the water to some mining locality where it might have been sold. This would have diverted it entirely from defendant's damn and ditch, and would have been in violation of defendants' rights. The court is of opinion that plaintiffs can not claim damages for being prevented from doing an unlawful act, and one which, if done, would have subjected the plaintiffs to an action for damages.

“As to the claim of damages for diverting the water from the dam and ditch of plaintiff's, located in 1858, to convey water to their tunnel claim, no water was in fact diverted from this dam, but the gravel and sediment that flowed down Siw Mill ravine froin the mining claims of defendants, and the gravel and sediment which flowed down from Campbell's ravine into Saw Mill ravine from the claims of Gregory & Co., did fill the dam and trongh of plaintiffs, so that the water could not flow throngh it to the tunnel claim.

“The mining claims of defendants upon the bank of the stream and the mining claims of those to whom defendants are selling water, were all taken up and worked before the plaintiff's located the dam to divert the water to the tunnel claim. The debris of defendants and other claims above flow naturally and of absolute necessity down the channel of the ravine to the new dam of plaintiffs. The plaintiff's must accept this new location of 1858 as they found it, and subject to the prior rights of prior location; and if plaintiffs have sustained an injury from the use of the prior right, which injury was an absolute necessity if the prior right were used at all, it is an injury for which plaintiffs can not recover damages.

“ The only prior right, as against defendants, shown by the plaintiffs, is the ditch located in 1853. To this ditch the water has continued to run uninterrupted and undiminished, so far as the evidence shows.

“ The conclusion of law is, that the injuries complained of are such as plaintiffs are not entitled to compensation for in damages, and that plaintiffs should take nothing by this action."

Judgment for defendants; plaintiffs appeal.

Wm. H. Rhodes, for appellants.

II. O. & W. II. BEATTY, for respondents.

COPE, J., delivered the opinion of the court, FIELD, C. J., concurring

This is an action for damages and for the restitution of certain premises described in the complaint. The facts are clearly stated in the findings of the court, and the conclusion arrived at is undoubtedly correct. The principal question is, whether a person appropriating and diverting the water of a stream at a given point can afterward change the point of diversion to the prejudice of a subsequent appropriator? The case of Kidd v. Laird, 15 Cal. 161, and the anthorities there cited, are decisive of this question, and it would seem that the position of the appellants is based upon a inisconception of the doctrine enunciated. They appear to regard the right to change the point of diversion as absolute and unqualified, whereas the rule is that the change must not injuriously affect the rights of others. This we expressly declared, and our views upon the subject have undergone no modification.

One of the grievances of which the plaintiffs complain is that they were ejected from the possession of certain ground, occupied by them for the purpose of constructing a dam and ditch. The object was to divert the water away from the defendants, and we think the plaintiffs have no right to complain of means adopted to defeat this object. As against the defendants, the diversion would have been illegal, and we regard their action in the premises as a proper and legitimate mode of averting the injurious consequences.

Judgment affirmed.

EVERETT ET AL. V. THE HYDRAULIC FLUME TUNNEL

Co.

(23 California, 225. Supreme Court, 1863.)

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Injuries from breaking dam. If a dam constructed in a good and work

manlike manner, and used with reasonable care, breaks at a high stage of water and injures mining claims below, the owners of the dam are not liable for the damages.

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Appeal from the District Court, Fifteenth Judicial District, Butte County.

The facts are stated in the opinion of the court.

McRae & BEATTY, for appellants.

F. C. Lott, for respondents.

CROCKER, J., delivered the opinion of the court, Norton, J., concurring.

This is an action to recover damages caused by the breaking of a dam owned by the defendants. The plaintiffs are the owners of mining claims and sluice.boxes below the defendants' dain, which broke at a high stage of water, and, as is alieged, injured the plaintiffs' property below. The case was tried by the court, who found for the defendants, and the

i Richardson v. Kier, 4 M. R. 612; Turner v. Tuolumne Co., 1 M. R. 107; See NEGLIGENCE.

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