Mariposa Democrat., 1857-04-22
SUPREME COURT DECISION.


Hoffman ct al VS.. Stone et dL-The former
decisions of this Court, in cases involving the
right ofparties to appropriate waters for mining
and other purposes, have been based upon the
wants of the community and the peculiar con-
dtion of things in this State, (for which there
is no precedent) rather than any absolute rule
Of law governing such cases.
The absence of legislation on this subject,
has devolvcd on the Courts the necessity Of
framing rules for the protection Of this great
interest, and in determining these questions,
we have conformed, as nearly as possible, to
the analogies Of the common law.
The fact early manifested ITSELF that the
mines could not be successfully worked without
proprietorship in waters, and was recognized
and maintained. To protect those who, by
their energy, industry and capital had con-
structed canals and races, carrying water for
miles, into parts of the country which must
have otherwise remained unfruitful and unde-
veloped, it was held that the first appropriation
acquired special property in the waters thus
appropriated, as a necessary consequence Of
such property, might invoke all legal remedies
for its enjoyment or defense. A party appro-
priating water, has the sole and exclusive right
to use the same for the purposes for which it
was appropriated, and so long as he is not OBJ
structcd in the use thereof, he has no ground
of action.
In the case before us II is shown that Dutch
Gulch was a mere torrent, dry at certain sea-
sons of the year; that it was used by defend
ants as a part Of their ditch for conducting wa
ter from another stream down to their dam /;
that in point Of fact, the water SO brought to
Dutch Gulch. and turned in there by defend
ants, was not abandoned by them, but was
turned in for the purpose Of being conveyed to
their dam, from whence It was afterwards di-
verted, and sold by them; that there was, at
the time of the commencement Of the suit, no
natural water flowing in the bed of the stream,
and that all the waters so diverted by the de-
fendants were artificial, or waters conducted
there by them.
The plaintiffs being the prior locators, it
would follow that any Interference with the
waters of Dutch Gulch would be an infraction
Of their rights. But the appropriation of the
waters did not give them the exclusive use Of
the bed of the stream. We see no reason why
it might not be used by others as a channel for
conducting waters, so long as it did not inter
fere with their rights. If the defendants were
diverting the natural water of the stream, as
well as that brought intoi by themselves, then
the plaintiff would have just cause of COM
plant
1t would be harsh rule, however, to re-
quire those engaged in these enterprises to con-
struct an actual ditch along the whole route
through which the waters were carried, and to
refuse them the economy that nature OCCASION
ally afforded in the shape Of dry ravinc, gulch
or canon. 1t is contended, however, that this
case falls within the rule of Eddy ct al. VS..
Simpson ct al, Cal. Rep, and Kelly & Co.
VS.. Natoma Water Company, January term,
1856. We do not think so. The verdict Of
the jury finds that the water was not abandon
D
cd by the defendants and left to find its way
by natural channels into Dutch Gulch hat was
turned in, by defendeo;.lls making the gulch q
connecting link of ineir ditch.
Under all the circumstances of the case, We
do not see how the plaintiff is entitled to re.
lief 1t may very possibly happen that at GER
tain seasons of the year the defendants dam
will obstruct the water running in the natura
channel of the stream, which of right belongs
to the plaintiffs, and in that event they would
have their action. But at the date Of the com
mencement of this suit no such state Of facts is
shown to exist, and the plaintiffs are not en-
titled to any relief.
Judgment reversed. MURRAY, G. j.
concur: f., BURNETT, j.