The Shasta courier., 1854-08-19
Rights Of Wafer Cempanic..

Rights Of Water Companics.
The Placer Herald publishes the decision oil
Judge Howell. in a case involving an importar,
question to the mining interest -
DrsrRIcr CouRr, llrH JUDICIAL DrsreTcr-
J. VI. Howell, presiding Ycrkee .J:ns's Union
Iyater Comparg es. Smttk ct ol.-In this case the
evidence showed that the plaintiffs, and those
under whom they claim. have been for two
years aud upwards the proprietors uf certain
Ditch leading from the irst Brushy Canon TO
the town of Yankee Jim's, Placer county,
through which the water of said canon has
howeo during that time for sale by plai tifs to
ihe miners of that vicinity. The mining claims
of def ..dants were shown to have been located
IN 1863 OH the slope of said canon about fifty
Ids more or less from the bed. And some tes-
{ tmony was introduced showing that in the fall
| of 1853 they had been extended to the border
Of The stream Of the cnuon.
Evidence also introduced by defendants
, 10 shuw the location Of a possessory land tract
for agricultural purposes bordering upon the
s.ream and including their claims. The only
proof given, however, being of its partial occu-
,ation and OF the working of its boundaries
root was also given that some time in October.
SJ3, defendants. by means of ditch tapping
aid canon above the head of plaintiffs ditch.
nveried its waters from the ditch of plaintiffs
md ca ried it to the clalms OF defendants, re-
| nrning it again 10 the bed OF the canon with
/! "a the limits OF the land claim above men
| Ioned
| Plaintiffs brough, this action for the recovery
'ttlamages for the diversion, and to obtain per-
petual Injunction agsins, all similar interference
with their bitches in future.
The following Is the charge OF Judge Howell
N the Cusc
JUDGE HOWELL CHARGE.
The right to the use of running water is a
mere incident 10 the ownership OF the soil
Possession of the soil in good faith is presump-
live evidence OF ownership and such possessor
is entitled 10 all the privileges of the owner
If the land thus possessed embraces running
stream, or threads upon it, the possessor is enti-
|. led to as much OF the water as necessary 10
the enjoyment Of his estate. and no cne can
rgh'fully divert it. Dut it is only iii cases where
the boupda!ies of the land embrace the stream
Or thread upon IT, that party in possession has
right to insist upon the use of the water. II
| his estate does not border upon embrace the
stream, and party should go above him on the
| stream and divert the water he is not in n pos
session to insist upon its beisg returned 10 its
natural channel. 1t, therefore, you believe from
| the evidence that the defendants claims do not
| lie upon or thread the stream, they have no
right predicated upon the ownership of the
claims to divert the water to plaintiffs prendce.
although you nav believe from the evidence that
the claims in point OF fact were located prior to
the time when plaintiffs diverted and aprro.
pria,ed The water 10 their use.
II. on the contrary, you believe from the evi.
dHnce. that defendants claims do lie upon or
hread :he stream, and that they have located
NJ are working them in good faith, then they-
have right to the Dt 80 much water as may
1e necessary TO wash their claims, although they
may have been located since the plaintiffs divert
ed the water for the purpose Of conducting IN
their ditch to be sold to miners.
1t you believe from the evidence. that the
waters of First Bushy canon had been diverted
md converted TO the use of the Marone s.
Hureston Ditch Companies, and that those COM
panies have sold and delivered their ditch and
water privileges the present plaintiffs, then
the plaintiffs have become invested as against
defendants, with all the rights of those compa-
MES. although there no conveyance in
writing of those rights
II you should believe from the evidence that
he defendants are the owners of tract of land
embracing threading the stream known as
First Brushy Canon, then they have right to
The Of so much of the water as nlay be ne
cessary to the enjoyment of the land. But they
can base no right upon the ownership of the
land to divert the water to the prejudice of
plaintiffs for the purpose of working mining
claims embraced within the boundaries of the
tract unless the claims lie in or thread the
stream.
Possession of land is pr;ma jacie evidence of
title, But TO raise that presumption there must
lie a bona fde occnp pation and ii snblecting OF
lie land to the will and control OF the occupant.
con'ra-distinguishe from the mere assertion
of title, and the exercise Of occasional acts Of
ownership.
The jury brought in a verdict in favor Of the
Plaintiffs, with damages to The amount 81 81 90.