The Placer herald., 1856-10-04

! /. ~
is first to appropriate the water of stream, can
insist upon them flowing TO him with their accus-
! toned regularity, undlmlnishcd in quantity. and
unaffected in quality; and on the other, whether
the miner or ditch owner above, who may be sub
sequcnt in point of location can so use the water
as to injure the owner below, 10y decreasing the
volume or adulterating the quality 10y mixing
with it soil and sediment, the necessary result OF
mining operations. 1t urges that under the de
cison in Irwin VS.. Phillips, the plaintiffs have II
right, hy virtue of their prior appropriation, TO
claim the exclusive use Of the water OF Bear Riv-
er, and that they shall flow to thtm in the same
pure state as when their dam and ditch were con-
structed in 1851 and that the miners above have
no r ght to use tbt m, If in so doing the volume is
decreased, or their quality iniuriously ati' cted.
do not so read the decision; the sole question
th, re decided, was the ight of miner locating
upon stream below, after the waters had been
diverted from its natural channel, to insist that it
should lie turned back for his convenience and uc-
cOmmodation. The Court held that inas much as
he had the right to make bis own locat on. if he
went upon a stream the wat, Is OF which had been
turned out Above HIM. be took his claim as he
found it, upon the ground that priority of oppro-
priat on gave priority OF right. The decision was
not intended to apply to case Of this kind. and
the rights of these parties must be test by other
considerations They stand as if that decision
had never been made. and are TO be settled hy the
principles OF the common law so far as they are
appl cable.
a great many authorities have been cited by
both parties. TO comment upon them in detail
would occupy more time than press Of business
will justify. by the common law every riparian
proprietor has right to use the water Of stream
as it flowed past his premises. 1t was an incident
to the ownership OF the said. In the exercise of
this right and the application of the water TO nat
urai uses, he less restricted than if he appli-
ed it to artGciai purposes. And herein lies Al
distinction that ought not to he lost SIGHT ot-onc
that was first prominently made in the United
States, by the Supreme Court of Illinois. in the
case of Evans VS. Meryweather. 3 scan: r, 496
To quench thirst, TO furnish ones household or
cattle with water are natural wants. to supply
which man may consume the entire strcam.--
These wants must be supplied or 10th man and
beast will perish. The supply OF man 5 artiil-
cia wants is not ess ntial TO his eXistt nee; 1t is
not Indispensable He could live if water was
not employed in propeling machinery 6c. In
using water for artificial purposes S. as in the case
here. very different rule obtains Angel. in his
work upon water courses says that the rule to hc
deduccd from the authorities is to the oct "lhat
for any essential diminution OF a water course,
which nature has directed to run in IA cera and
determnate channel for any purpose, the law IN
this country will interpose." What shall be
etmtd an essential dmnuhon varies according
to circumstances and the uses to which the water
is TO be applied 1t will be observed from an eX
animation of authorities that the Courts have
been Justly and greatly influenced by consdera
tions of this kind. In arid countries. where the
water of streams is chiefly used for the purposes
of irrigation, an amount may be absorbed and
cvaporated without its being considered an essen
tial diminuton. that "ould not be sutfert d: when
it was used by different proprietors for prop Hing
machinery; and for very obvious reasons. II us
ed for rgation. large portion of it is necessa
rily and unav voidally taxi up hy alsoIpt. on and
evaporation; and to say that a proprietor should
not thus diminish it., would be V rtually denying
him the right of using it at all. On the contrary, il
it is applied to manufacturing purposes, material
dimlnutlOn is not necessary and would be collsid-
cred wastctul and essential l hus 1t VIII he seen
that the rule varies according to circumstances. $.
Indeed, ore of the chief beauties OF tn common
law. is its fexibilty and adaptation to the ever
varying condition OF human affairs. 1t is but II
system Of rules growing up with the growth ol
the country, and accommodating itself to its
wants and its eXigencies, throwing its protecting
arms around all, but fostering none 10 tne Pfeju
dice Of others
Testing this case by these principles what is
the result? Courts will "judicially notice the
counties which they rule" But if this W, re not
so it is an undeniable fact that the principal and
almost exclusive use to which the water oi the
streams in the mining districts in this State sap-
piled is for mining purposes Without it the vast
mineral wealth of the country must remain unde
veoped. and large tracts forever continue barren
and unproductive. As water is absorbed and di'
minishcd by irrigation, so must it be in mining
op, ratiOns. To hold the miners to the same
stricness in its use that you would supra-pro-
prietor, applying it TO mechanical or manu'actur-
ing purposes would strip him OF all its practical
benefits. Yet it is by no means true that he has
Il right to use it in any manner that he may
choose lie must use it in such way as TO work
the least possible injury 10 those below who have
acquired like right to its use. Whether he docs
50 use it is a question Of fact and not Of law, to
be lound by the jury. In this case the jury have
found that the plaintiffs by the acts of the defcn-
dants have lost twenty inches of water per day
for ninety days. worth to them dollar per inch.
But they have also found that they used it in a
re asonable manner and with the least injury up
on its use; that they did not wlfully or wantonly
waste it.; and that it could not have been used IN
any other reasonable manner.
The defendant, then, having used the wa
ter in this way, can say, as a matter Of law
that the absorption of twenty inches per
day, considering the voIumne of water flow
inc in Bear river, is such an essential dmi
mutton, although it was worth a dollar per
inch as to give to the plaintiffs cause of ar-
ton? Were to do so; | should violate a
principle as old as the element OF water itself.
No one will dispute the proposition that
every riparian proprietor has right to use
running water as it flows past him, and the
only Limitation upon that right is that he
shall use it in reasonable manner, and
with the least possible injury to his neigh
bor. Should award damages for this cause
| would say tothe defendant You have right
to use this water; you have used it in rea-
sonable manner, with the least possible injury
10 the plaintiff but you must compensate them
for doing so. This would give to plaintiffs an
al solute property in the water, an idea that
is at utter variance with all of the adjudic-
ated cases, subversive of the best interests OF
the country, and inconsistent with the law OF
nature.
The reasoning upon this branch of the
case is equally applicable to the claim
for adulterating the water. Any one at all