Grass Valley telegraph., 1854-08-17
Rights Of Wafer Companies.

The Placer Herald" quotes an important
case in relation to the mining interest which
we believe IS sustained by the decision OF
nearly every one of our District judges.
The case is cited as "Yankee Jin's Union
Water Company vs. Smith ct al" The
plaintiffs brought this action for the recovery
of damages for the diversion of the water
from their ditch, and to obtain perpetual
| injunction against all similar interference
with their bitches in future.
The plaintiffs proved that they had been
the proprietors of the ditch for two years and
more, during which time they had sold water
to the miners in the vicinity. The defendant
proved that they had ranched for given
time, upon the bordering land, including the
claims of the deft's 1t was also proved that
few months since the defendants had tapped
the ditch diverting its waters, but that they
had returned it again to its bed, within the
limits of their land claim.
The following are some of the more impor-
tant points in Judge Howels charge:
"Tbe right to the use of running water is a
mere incident to the owneAkip of the soil.
Possession of the soil in good faith is presump-
tive evidence of ownership and such posses
sor is entitled to all the privileges of the
owner. If the land thus possessed embraces
running stream, or threads upon it, the pos
SCISSOR is entitled to as much OF the water as
is necessary to the enjoyment of his estate,
and no one can rightfully 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 in
sist upon the use OF the water. II 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 be-
lieve from the evidence that the defendants
claims do not lie upon OF thread the stream,
they have no right predicated upon the own
ership of the claims to divert the water to
plaintiffs prejudice, although you may believe
ilOnA IAS S' 'IuSnCc IudG GHc CIdiI1S III pOluI Vi
fact were located prior to the time when
plaintiffs diverted and appropriated the wa
ter to their use
If, onthe contrary. you believe from the
evidence. that defendants claims do lie upon
or thread the stream. and that they have To-
Gated and are working them in good faith.
then they have right to the use of so much
water as may be necessary to wash their
claims. although they may have been located
since the plaintiffs diverted the water for the
purpose of conducting in their ditch to be
sold to miners
'If you should believe from the evidence,
that the defendants are the owners of a tract
Of land embracing or threading the stream
known Firet Rrucby Caiinn- thaa 4hn,r how q
a 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
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 tine stream"
The jury brought in verdict in favor OF
the plaintiffs, with damages to the amount Of
81.