The Placer herald., 1856-10-04

| In coming to these conclusions am not
unmindtul of the many plausible and weghty
reasons urged in behalf of the plaintiffs
claims. 1t will not 10y any means follow, as
has been urged, however, that the establish
ment of such doctrines will work the utter
ruin of ditch property. 1t will be borne in
mind that the plaintiffs and all others occu-
pying their position, have right to recov-
er for every essential injury or diminutio
and that, wether the injury be of that char
acter is question of tact to be left TO the
jury, under all the circumstances Of the case
Ii they find the use, diminuion or adultera-
ton to be unreasonable the right Of rccov-
cry to the extent Of the injury is complete.
Whether the jury in this case were justified
in the conclusion arrived at, is a question
that cannot be passed upon this motion.
The only remaining question is, as to the
effect of the verdict for detainng the water
Upon this proposition the jury say thar the
defendants detained il and caused il to flow
irregular to the Plaintiffs danagein the sum
Of $3.50 90. 1t is as illegal TO de'oin the
water of stream unreasonahy as it is to
divert it. But neither the occasional increase
tun Of water below nor the iuse sbe evap
Grafton by dams, DC, will amount TO an ac-
tonahIe injury. Ch. j. Dent, IN Palmer, ct
al. Us Muiigan, ct al., in speaking of th 8
subject, uses this language: MANY such cir
cumstances may be inevitable from The estab
lishment of one dam above motl .er upon the
stream. The question in such eases would
depend upon the nature and extent ot the m
Jury" In Tyler VS.. Wilkinson, Mr.. Justice
STORY said He did not mean to be under
stood as holding the doctrine that there
coUd he no diminution Wha ever, and no OBJ
>truc ion or impelime by riparian pro-
Hietor, IN the use OF water rs it flows. That
would Iosc to him all valuable use there may
be, and there must be allowed for that, which
is common to all, a yeosohQj(e use" And
again, in the same case he makes use of the
following language: "1he law here, as
in many other ases, acls as IA reasonable |
reference to public convenience and general
good, and it is not betrayed into a n rrow
striclnesS suhvers>e of common use, nor i'll
TO an eNlavagant ooseness which, would de-
stroy private rights" In q ease in prMnsyl- |
vana, 6 vol. Barr 80 the Court gave to The
jury the following charge: THE defendant
has right to use the water as it passes
through his land If he detained it no long
er than was necessary for lis proper enjoy
ment Of it, the plaintiff cannot recover
Whether, if you believe, from the evidence,
he did detain the water three days at times,
a. oher times five days and at one time
tn rteen days, in his own dam to the injury
Of plaintiff s mill, this was longer than was
necessary for his proper enjoyment of it, is
left for YOU to determine. tyou believe il
WAS, YOU viii find for the defendant, This |
was objected to: but the Supreme Court in
passing upon it sad that it so fully emhod
ned the law Of the ease that it left but little
for them to ald'-lhat the reasonabeness of
the detention depending as it must upon the
nature and size Of as well as the business TO
which it is subSapient and on the e>el-vary
ing circumstances Of each particular case
must necessarily he determined by the jury |
and not bv the Court.
hese authorities are sufficient to serve
the purpose for which they were quoted, viz,
that this too is question of fact for the
Jury, and that The nature Of the detention
and length Of time it will be permitted, de
pends greatly upon the purposes for which
the stream has been made subservient. Bear
river has been appropriated to mining pur
poses; the defendants have right to use its
waters; the jury say they have not used
them unreasonaby and think they are not
responsible in damages. Itfollows, therefore
that the plaintiffs are not entitled to the re-
lief they seek: and the motion for judgement
upon the verdict must be oycr-ruled. The
Clerk will therefore enter judgement in ac-
cordance with this opinion, and that the
defendants 90 hencd without delay and re-
cover of plaintiffs their costs and charges
in this behalf expended
j. NJ. HOWELL. Dist. Judge.