The weekly Placer herald., 1853-12-17
Important to Ditch Compa nies.

| h"pOEtdht 10 DatCh SUn pd NAcSs
Tbe following decision was made Ivy
the Supreme Court of this State in Au-
gust last, in the case of Shady Creek Com
pany vs. Grizzly Company, near French
Corral, on the Yuba river:
81 n. Eddy, ct al, %. John Simpson,
| Ell al. from the record in tn case il ap-
pears that the Plaintiffs constructed Il dam
across a stream called Shady Creek, and
by means of ditch, carried ,he waters of
Shady Greek to French Corral, where the
water was used by plaintiffs for mining
purposes.
After the construction of plaintiffs
work, and after plaintiffs had been for
considerable period of time in possession
Of, and using the waters OF Shady Creek,
the defendants constructed work of
similar nature, whereby they brought
water from Grizzly Canon and Bloody
Run, to place known as Cherokee Cor
raj, where the water from defendants
ditch was used for mining purposes. The
water thus used by defendants at Chero-
kee Corral, from hat point found its way
by natural channels and by the naturaI
level of the country, into the waters of
Shady Creek, above the dam of the plain
tiffs
The defendants subseq quently construct
ed dam above the plaintiffs dam, run
ditch to French Corral and diverted
portion of the waters of Shady Creek, so
that at times no water descended to plain
titfs, the entire quantity being used by De-
fendants' ditch above.
The point made by the defence on the
tria of the cause, below, was, that by the
act of the defendants the waters of Griz-
ely Canon and oody Run were caused
to flow into Shady Creek, that therefore
the defendants had right to construct a
dam and ditch above Plaintiffs and carry
off the same quantity of water from Shady
creek, that flowed from the defendants
ditch at Cherokee Corral. This defence
is set up substantially in the answer of the
defendants and the Court below held that
defendants had caused to flow into Shady
creek, and could Withdraw the samt.-
The instruction refused, and the charge
given by the Court, both assume this right
in the defendants. In considering the
question presented, it ia to be observed
that the foundation Of plaintiffs right was
their first possession. Of all the waters
running into Shady creek they were in
posse and use, unit defendants con-
structed their ditch above them, running
to French Corral. There is no pretence
Of right in the defence to carry off water
from Indy creek except claim of prop
erty in the water from Cherokee Corral.
1t is laid down by our law writers, that
the right of property in water is usufrac-
tuary; and consists not so much of the
fluid itself, az the ad: nntages ot its use.
The owner of land through which stream
runs, merely transmits the water over its
surface, having the right to its reasonal lie
use during its passage. The right is uot
in the corpus of the water, and only con-
tinues with its possession. (Augel on
Watercourses, p. 66 A party cannot
reclaim water that he has lost I'D Black
stone p. 16.) When the water of the
Grizzly Canon and Bloody Run left the
possession of the defendants at Cherokee
Corral, all right to, and interest in that
water, was lost by the defendants. 1t
might be made the property Of whomso
ever chose next to possess it, Without
the agency of the defendants it found its
way into Shady creek, Joining the waters
then in possession of the plaintiffs, and
became a part of the body Of water used
and possessed by them.
AS defendants had now lost all right tn
the water, they could have no right to
withdraw it from the possession of the
plaintiffs. The rule laid down by the
Court below, while it is n departure from
all the rules governing this description Of
property, would be impractlcabe in its
application, and we think it would be
much safer to adhere to known principles
and well settled law, 80 far as they can be
made applicable to the novel questions
growing out of the peculiar enterprises
in which many of the people of this State
are embarked. The judgment of the
Court below will he reversed, and the
cause reinanded for new trial.
WELLS, j.
Concurred in, HEYDENFELT, J.
Counsel, Gin this Court,) for plaintiffs,
(Shady Creek Co y j. A. McDougall;
for defendants, (Grizzly Coz F. J. Dunn.