Weekly Trinity journal., 1857-04-04
Supreme Court Decision.

/
the decision entire for the benefit of our mining
friends throughout the county. 1t will be found
that this decision examines all the points mnutely
in reference to the right by priority in the appro-
priation of water for mining PURPOSES and also
settles all the essential points of difference which
frequently arise between bitches. 1t should be
read and copy preserved by every miner in the
county:
/ Francisco Morris f al vs.. Isaac BickneH et
a. In the fall Of 1851, certain parties, under
whom plaintiffs, claim cut ditch from certain
rayne in Todds valley, called Main Ravine In
the beginning of 1852 other parties, und der whom
defendants claim, cut two bitches from the same
ravine, and above the ditch of the plaintiffs
This suit was brought to try the right of the par
ties to the water flowing in the Maine Ravine
and to perpctually en- DIN defendants from using
any of the water, so as to prevent its natural
/ flow to plaintiffs ditch. The defendats took the
ground that the ditch cut by tho plaintiff gran
tO-s was only intended and used as n drain to
carry off the water from their mining claims, and
not to supply water for mining purposes and
that before plaintiffs so applied the water through
their ditch, defendants had constructed their
bitches and used the water for mining purposes
and thus gained priority over plaintiffa. The
/ evidence was conflicting upon this point. and the
/ Court below instructed the jury as follows:
/ That if they believed, from the evidence, that
/ the main rayine ditch was constructed prior. in
point of time, to the ditch or bitches of the de-
| PENDANTS and the waters of the ravine diverted
thereby, il made no difference what the original
intention in constructing it might have been
| provided the use was not abandoned prior to the
| time that defendants rights attached; and that
plaintiffs did not lose their right by varying the
use from the original objects of the owners
| Certain instructions were offered by defendants
which were not given by the Court but as no
exception was taken, we cannot notice the action
of the Court in this respect. The defendants ex-
cepted to the giving of the above instructions.
/ The first question that arises and which is the
most important one in this case is whether di-
verting the water from its natural channel for
the purpose of drainage simply is such an appro-
priation of that element as to give the party q
| right as against others who wish to appropriate
the water for useful purposes.
In the case of Kelly x Co. vs. The Natoma
Water Co., this Court held that possession or ac-
tual appropriation must be the test OF priority
in all claims to the use Of the water, whenever
such claims are not dependent upon the owner
ship of the land through which the water flows
From this decision il follows that there must he
an 'dctuat appropriations and it would be seen
clear that such 'actuai appropriation must be
for some useful purpose allowed by law. In fact.
merely turning the water from claim with the
intention to dispense with its use is no actual an
preparation at all. 1t also follows from the same
decision, that until such actual appropriation
there can exist no complete right to the use of
the water, for the party may never carry ont his
intention. But it was also held in that case that
if party commenced first to construct q work
in good faith, then although his power OF enjoy
ment would not commence until its completion.
yet the right as against others would have rcla-
tion TO the time IF commencement.
From these principals it would seem legitima-
tel In hat tha itoI, 81
cut for the purposes Of drainage simply and moi
with the b0nd fde intention of approprating the
water thus diverted, to some useful object, and
the ditch or bitches of defendants were commcn-
ced first in good faith with the intent thus TO ap-
propriate the water and before any actual an
preparation by the plaintiffs or their grantors for
mining purposes, then the defendants gained
priority over the grantors of plaintiffs, and over
all persons holding under them.
Unless the grantors Of plaintiffs had construct
cd their ditch with the intention of using the wa
ter for mining or other useful purposes or after
its construction they had actually so applied it,
the defendants could not know that they ever
would so apply it. or intended so to apply it. If
at the time plaintiffs dlch was made such inten-
tiOn had existed and been avowed. and after
wards carried out in good faith within a reasona-
bic time, considering all the circumstances then
defendants could not by any act of theirs right
fully appropriate any water in the ravine uPres-
""'H ~ M WV 'itOh VI 10 IlS
acfUdl capacity at the date of the commencement
of defendants ditch or bitches.
From these principals ii follows that the mere
prior construction of ditch and diyerting the
waters Of q stream, will not give the party any
priority over others There must be an actual
appropriation, or an intention to appropriate fol-
lowed by due diligence.
The next question that arises in this case is
whether party who makes prior appropriation
of water can change the place of its use, without
losing that OF priority, as against those whose
rights have attached before the change. This
question, we think can admit of but one answer
1t would seem clear that mere change in the
use of water. from one mining locality to anoth-
er, by the extension of the ditch, or by the con
struction of branches of the same ditch, would
by no means effect the prior right of the party
Ii would destroy the utility of such works were
any other rule adopted. As to the question,
whether party can change the use of the water
from one purpose to another without affecting
his prior right we express opinion, as the
point does not arise in this case
The instruction given by the Court below was
not just to the defendants, because, from its
terms. it did not place the claims Of the parties
upon the proper grounds, nor Estate clearly the
distinctions necessary to give the jury correct
idea of their duty under the evidence given in
the case. For this reason, the judgment must Dc
reversed, and the cause remanded for further
proceedings BURNETT. j.
concur: MURRAY, CO.
RECEpTIoN Og NIN SoturJny ,,orn;r,, ct