Weekly Trinity journal., 1859-01-29

is long time appropriating it others than him
self have the use of it in its natural channel and
the longer he is in completing his work, the lon
ger they can use it,
The necessity of encouraging this great inter
est of our State, however, has caused our Legis-
lature to say that if after five years time the
first locator or appropriation cannot complete his
work, that another may take it and do what the
first claimant failed to do II reasonable pro-
lection were not thrown around the rights of
these pioneers in Improvement, no one would feel
safe in investing capital, or labor in developing
the resources of our State. The Legislature has
therefore, in its wisdom, very properly allowed
five years for the completion of those great TN
dertakings, requiring money and skill, and Courts
should enforce the law and give this reasonable
time" in which incohate rights can be perfected.
In this case however, the defendentS increased
their ditch so TO carry out their original de-
signs long before the statute of limitation could
bar them, and consequently in my judgment, ac-
quired perfect right to the waters of the west
branch of East Weaver creek. The counsel for
the plaintiffs again call my attention to the evi-
dence of Mr.. Burns, and also particularly TO the
testimony of Mr.. Joe Brown, and urges that be-
cause they both sworc the one that Mr. Howe
told him that he only claimed eight or ten tom
heads of water in June, 1851, and the other that
he was entitled to water and ought to have it,
that these statements should control the Judgment
of this Court and should outweigh the acts and
declarations of Howe Il Co., as detailed by doz-
en- witnesses. Admitting that the statements are
true, literally as declared by Mr. Burns, Mr..
Brown. Mr.. Clough, Mr.. Elliott and other of the
plaintiffs witnesses, it merely shows conflict Of
evidence on the point Of appropriation. | how
ever consider these isolated statements as detail
ed, weaker evidence than the acts of parties, and
think if Howe Il Co. did not intend to appropr-
ate the water of the west branch of East Weaver
but only eight tom heads, they acted with less
good sense than is generally supposed to acuate
men of business qualifications in any country, for
all the witnesses, both plaintiffs and defendants
speak of the immense capacity of their ditch, and
it is of. this great size that the plaintiffs complain
Most of the witnesses who have been examined
by the plaintiffs, and who speak of the conces
sions OF Howe Il Co. are repeating conversations
between the defendants in which Howe is said to
have conceded rights to the Clough ditch compa-
ny, (nOw Sloan's) and the Scavey and Bates com
pany, (now Ware Il Coz both of whom are de-
PENDANTS, sued jointly with Howe & Co. Even
this arbitration spoken of by witnesses was be-
tween these defendants, and the award only
claims to decide between the Clough ditch the
Scavey and Bates ditch aud the Howe q Co.
ditch and no whore adjudges that the plaintiffs
ditch is entitled to any water, so that giving the
force to the instrument that it would be entitled
TO as an award, the plaintiffs can acquire no
rights under it, but as ! remarked in my original
finding, this instrument can cut no hgurc In this
case. 1t has none of the ingredients of an award,
and still seems to have been entered into merely
for the purpose of preserving peace in the com
munity. | still think it was a miners meeting,
and one by which no rights were divcsted from
the defendants or conferred upon the plaintiffs
Counsel have asked me how | came to the con-
clusion that this award was based upon the doc
trine of riparian proprietorship to which | re-
ply for their qualification because in making that
award the arbtrators did not consider or act up
on the doctrine of relation in approprlatlhg The
waters or giving rights, but merely permitted
Howe & Co to hold what water they actually
used through their ditch, and because they per
mtted the other companies to do the same thing.
A gain, one of the counsel objected that had
spoken of the arbitratOrs as excellent cllzcns,'
which he says is false finding. | thought they
were PEACE,MAKERs, and as snch ! pronounced
them good men, | have no disposition to
change my findings in regard to the award, and
will review and pass upon the other polhlS MADE
by the plaintiffs counsel.
But before | do so | will briefly refer again TO
my conclusions upon what think is the evidence
think the weight of evidence shows that Howe
Il Co. claimed all the waters Of the west branch
of East Weaver, and the east fork OF the west
branch of East Weaver, originally that they ap-
propriated all of these waters so far as to con
duct the two branches by digging a ditch and
building dam, that before using the east fork
of the west branch of East Weaver, they snrren-
dered it to the Cough company, (now Sloan, one
of the defendants) that during the summer OF
1851 the defendants, Howe N Co., completed the
ditch so far as to turn the whole of the waters Of
the west branch Of East Weaver into it that in
the summer of S5l they used about eight or ten
tom heads of water, and continued afterwards to
increase the size of the ditch until 1858, when the
ditch was of capacity to carry all the waters of
the creek, except in very high floods, and that
they have never abandoned their claim, and that
the first acts Of appropriation by the defendants
were prior to the completion Of the plaintiffs
ditch. From these findings the judgment must
be as announced before-for the defendants.
/ am convinced that in my former findings of
fact I erred in my impressions to the amount
of water there was running in the creek when
Mr.. Burns states he had this conversation with
Mr.. Howe There must have been more than
eight or ten tom heads as | found, but that er-
ror cannot affect the verdict, but only require
different reason to be given in harmonizlng his
statements with those of other witnesses sim
ple statements of isolated facts in a conversation
20 but little way towards rebutting declara-
tions with acts so say the law writers, and on
the one side in this case it seems to me that the
defendants declarations are coupled with acts,
whilst on the other most of the declarations are
between the present defendants, were drawn
from the defendants under circumstances which
were calculated to elicit Acknowledgements which
would be very reluctantly granted or fuhled-
There is one proposition of law which will no
tice, and with that / believe my review of this
case should end. One Of my conclusions OF law
was in substance that the defendants having been
in possession of the waters adversely to the
plaintiffs for more than five years the plaintiffs
have no cause of action. And several cases are
cited tending, as plaintiffs counsel contend to
support contrary position. Billings VS. Harvey,
9th Cal. Repts. 3Sl, Billings VS. Hall, 9Th Cal p.
l, ct Sec 0, 9Th Cal. 1856, Crandall VS. Wood, are
cited as authorities in point. shall briefly re-
view each of these cases. The plaintiffs propo-
sition, if | understand it Alright was that mas
much as the statutes of limitation had been chan
ged since 1851, that it would run against the
nlaintifs from the date Of the last change in the
law, or in other words that person 10 possession
could gain nothing by All bchoate right which
could be taken away by legislation, whereas
vested right could not be divested. My idea IS
this that every right Isl vested one, aud though
not perfect, is one step in the chain towards
perrect right Thus possession is prina Jdcie eV-