The weekly Columbian., 1857-04-11
Supreme Court Decision.

supreme COUTV VOCBl0us
Hoffman ell al vs. Stone ct al-The for
mer decisions Of this Court, in cases in
volving the right of parties to appropriate
waters for mining and other purposes.
have been based upon the wants of the
community and the peculiar condition 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 SUBJ
ject, has devnlved on the Courts the ne
cessity 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 work
ed without proprietorship in waters,
and was recognized and maintained. To
protect those who, by their energy, in
dustry AMI capital, had constructed 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 appro-
priator acquired special property in the
waters thus appropriated, as necessary
consequence of such property. might in
woke all legal remedies for its enjoyment
or defense. A party appropriating 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 ffucted in the use thereof, he has
ho ground of action.
/ In the case before us it is shown that
Dutch Gulch was mere torrent, dry at
certain seasons of the year; that it was
used by defendants as part OF their
ditch for conducting water from another
stream down to their dam that in point
of fact, the water SO brought to dutch
Gulch, and, turned in there by defendants,
was not abandoned by them. but was
turned in for the purpose of being con-
veyed to their DAM. from whence it was
afterwards diverted, and sold by them;
that there was, at the time of the COM
mencement of this suit, no natural water
flowing in the bed of the stream, and that
all the waters so diverted by the defend
ants 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 ap-
preparation 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 channel for
conducting waters, SO long as it did not
interfere with their rights. If the de-
PENDANTS were diverting the natural water
of the stream, as well as that brought into
it by themselves, then the plaintiff would
have just cause of complaint. +,
1t would be harsh rule. however, to
require those engaged in these enterprises
to construct an actual ditch along the
whole route through which the waters
were carried, and to refuse them the
economy that nature occasionally afforded
in the shape of dry ravine. gulch or ca
non. 1t is contended, however, that this
case falls within the rule OF Eddy ct al
VS.. Simpson ct al, 8 Cal. Rep, and Kelly
& Co. VS.. Natoma Water Company. Jan
uary term, 1856. We do not think So
The verdict of the jury finds that the wa
ter was not abandoned by the defendants
and left to find its way by natural chan
nels into Dutch Gulch, but was turned
in by defendants making tn gulch con-
Meeting link of their ditch.
Under all the circumstances of the case
we do not zee how the plaintiff is entitled
to relief. 1t may very possibly happen
that at certain seasons of the year the de-
fendants' dam will obstruct the water
running in the natural channel of the
stream, which of right belongs t. the
plaintiffs. and in that event they would
have their action. But at the date of the
commencement of this suit no such state
of facts is shown to exist, and the plain
tiffs are not entitled to any relief.
Judgment reversed. MURRAY. G. J.
l concur: BURNETT, j.
AN INGENIOUS APOi,Of5v -