The Placer herald., 1857-07-11
Important Decision of the Supreme Court

Below will be found decision, rendered
by the Supreme Court at its present term,
which was carried up from the District
Court in this county. Much interest has
been felt in the determination of this case
as other important suits, involving similar
issues are in litigation.
Hill vs. King et. ol--The only question
involved in this case, is, whether the propri-
etors of water ditch can maintain an ac-
ton against the subsequent locators Of min
ing clailns for a deterioration or diminution
of water so appropriated,
1t has been repeatedly held by this court
that, as against those locating below the
head of IA ditch or point, whore the water is
diverted from the stream, the owners of
such ditch, if their appropriation of the WA
ter was prior to the location of mining
or other claims, had a superior right, and
might protect it by the ordinary remedies
known to the law. The only difference be-
tN cen this case and those heretofore decided,
consists in the fact that the defendants
claims are above, and not below, the head of
the plaintiffs ditch
1t is difficult to discover why the prnci-
pie which governs one case should not be
equally applicable to the other; or why, if
the law gives to the first appropriation
right to use Of the water, pure and undimn-
ished as against the subsequent appropriation
below, he should be allowed by more
change of position to evade the consequent
ces of the rule. and to place himself in po
sition which would destroy the rights of the
first appropriation.
The right to appropriate the waters Of the
streams Of this State for mining and other
purposes, has been too long settled to ad-
| NIT of any doubt or discussion at this time.
Some Of the older English authorities held
that Alright to water might be acquired by
a riparian proprietor by appropriation, and
this court might, with proprety, have main.
tanned the rights of water companies on the
ground that they were riparian owners, but it
has based this right on the ground that the
legislation of the State has given to every
one not only privilege to work the gold
placers," but also to divert the streams for
this and other purposes. The legislation of
the State has been held to amount to
general license to oU," whether properly, is
not for me to say, tho point having been de-
cided by a majority of the Court against
my own opinion, see Conges VS.. Weaver,
Oct. Term, 1859 and when these bitches
have been constructed, they are regarded
as franchise or easement, belonging to the
propretors, and are entitled to protection as
any other property.
The only test as between parties, where the
lands belong to the United States, or this
State, is priority of location, and whether
party locates above or below tho claim Of
another, his right depends or originates in
appropriation alone; he must take subject to
the higher right Of those who were first in
point Of time to appropriate. If the parties
both claimed as riparian propretors, then
each alike would be entitled to the reasona-
BILE use of the water for proper purposes.
But in such case the supra riparian rroprie-
tor, must SO use the same as to do bis neigh
Dor the least possible injury, and the gener-
al rule is, that each riparian proprietor is en-
titled to tho free use Of the waters, pure
and undiminished, except the deterioration
or diminution be so slight or unimportant
as not to materially diminish the quantity or
quality.
Testing the case by this rule, it might be
asserted with confidence that the facts of this
case warranted recovery. But when it is
taken into consideration that the parties do
not claim as owners of the soil, that mono of
the rules applicable to riparian proprietors
apply, and that they both ground their res
pective rights upon their location, then the