The weekly Placer herald., 1854-08-05
DISTRICT COURT, 1lrH JUDJCIAI
DISTRICT. Il
j ~
>. M H"wELL, Presiding.

VS. Smith ct al. In this case the ;tpa"y ev;iy
showed that the Plaintiffs, and those NJ
der whom they claim, have been for ,.,4r
years and upwards the proprietors oro o
certain Ditch leading from the lst Rr,,L.a'
Canon to the town of Yankee Jim's pIay
Ger county, through which the wa,or 'a O.
said canon has flowed during that time g.. f..
sale by Plaintiffs to the miners of tha, ,of ~;
clnity The mining claims of defendants
were shown to have been located in 1870
on the slope of said canon about so rods
more or less from the bed. And soms
testimony was introduced showing thar ~,
the fall of 1858, they had been extendad
to the border of the stream of the canon
Evidence was also introduced bv d..
PENDANTS to show the location of ms
sessory land tract for agricultural purnnSo.
bordering upon the stream and inclld;na
their claims. The ony proof given how,
ever, being of its partial occupation and
of the working of its boundaries. prnof
was also given that some time IN October
1888, Defendants, by means of ditch
tapping SAID canon above the head of
Plaintiffs ditch, diverted its waters from
the ditch of Plaintiffs and carried it to tho
claims of Defendants, returning it AGAIN
to the bed of the canon within the limits
of the land claim above mentioned.
Plaintiffs brought this action for tho
recovery of damages for the diversion.
and to obtain a perpetual Injunction
against al similar interference with their
bitches in future.
The following is the charge of Judge
Howell in the case:
JUICE HowELL's CHARGE.
The right to the use of running water
is mere incident to the ownership of the
soil Possession of the soil in good faith
is presumptive evidence of ownership.
and such possessor is entitled to all the
privileges of the owner. If the land thus
possessed embraces a running stream, or
threads upon it, the possessor is entitled
to as much of the water as necessary to
the enjoyment of his estate, and no one
can rightfuly divert it. But it is only in
cases where the boundaries of the land
embrace the stream, or thread upon it,
that party in possession has right to
insist upon the use of the water. If his
estate does not border upon or embrace
the stream, and party should go above
him on the stream and divert the water,
he is not in a possession to insist upon its
being returned to its natural channel. If,
therefore, you believe from the evidence
that the defendants claims do not lie upon
or thread the stream, they have no right
pred'cated upon the ownership of the
claims to divert the water TO plaintiffs
prejudice, although you may be ieve from
the evidence that the claims in point Of
l. 4 ho,,
plaintiffs diverted and appropriated the
water to their use
II, on the contrary, you b leve from
the evidence, that defendants claims do
lie upon or thread the stream, and that
they have located and are working them
in good faith, then they have right to
the use of so much water as may be me-
ces>ary to wash their claims, although
they may have been located since the
plaintiffs diverted the water for the pur-
pose Of conducting in their ditch to be
sold To miners.
# Won be eve from the evidence, that
the waters of FIRST Drushy canon had been
diverted and converted to the use OF the
Narlone & Hureston Ditch Companies,
and that those companions have sod ana
uSiiNtIttl llltli WV ii anu N"N' ~ ~ ~
to The present plaintiffs, then the plam'tis
nave become invested as against deiend-
ANTS, with all the rights OF those cothpan-
les, although there was no conveyance III
writing of those rights.
If vou should believe from the evidence,
that the defendants are the owners OF
tract of land embracing or threading the
stream known as First Brushy Canon,
then they have right to the use OF SO
much of the water as may be necessary
to the enjoyment of the land. But they
can base no right upon the ownersh'Po Oh
the land to divert the water to the preJu-
dice of plaintiffs for the purpose OF WORK.
ing mining claims embraced Wlthiti t"0
boundaries of the tract un ess the c'a'"''
lie in or thread the stream.
Possession of land is prima tac'e evl'
dence of title But to raise that presumP'
ton there must be bona tide occupat'oin,,,
and subiecting of the land to the WI.
and control of the occupant, as coh''"c
distinguished from the mere assert,o" ol
title, and the exercise of occasional ACTS
of ownership"
The jury brought in a verdict IN favol .ta
of the Plaintiffs, with damages 10 'n0
amount of i 90.
The venerable Thomas Richie, so !o"s
and 50 wide y known as veteran eu''o'
is no more He deh on the 81 JuIy' a'