Weekly Trinity journal., 1859-01-15
THE JOURNAL.
yEAvERvILLE, SATURDAY, JAN. Is, 1859,
Decision of Judge Daingcrfeid in the Case
of Watson a. Cooper vs.. Ware, Ct. al
RENDERED MONDAY, JAN. 81.

This cause was submitted to me upon the evil
dence taken in open Court hy acommlssloner Sc
lected by the plaintiffs and defendants, and upon
the evidence | come to the following conclusions:
First, that what is known as the Howe d %.
ditch is the Oldest ditch and that the bitches were
dug in the order set out in the plaintiffs com
plant and not denied in the answer that the
original object in making the dam-the head OF
Howe & Co.'S ditch, was to appropriate all the
waters of the west branch of the east fork Of
Weaver creek, and the east fork of the east branch
of said west branch of Weaver creek that at the
time said dam was erected there were ia said
creek about eight or ten tom heads of water as
the same were used in the summer Of 1851, which
were appropriated by Howe d Co.; that the ditch
of Howe Co. was first dug of the capacity to
carry eight or ten tom heads OF water that al
terwards the defendants, Howe & Co. enlarged
their ditch that before the enlargement the
plaintiffs in this suit, or their predecessors, had
dug their ditch and had taken possession Of six
tom heads of water {; that afterwards the delen-
dants Howe g. Co., enlarged their ditch and APP
propriated all the waters Of The west branch Tex
cept about four tom heads for the bed of the
stream) to their own use that at sundry times
after Howe & Co. appropriated the waters Of the
west branch Of Weaver creek, rs aforesaid, these
plaintiffs and others demanded and claimed a
portion Of the waters thus appropriated by Howe
* Co, that arbitrations were had, promises eX-
acted, and the plaintiffs and Others did use the
waters as alleged IN lnelf COD pdl. DuN bV " TN
the consent of the defendants 10 this suit, but q
gainst the assertions and claims Of rights on the
part of the defendants.
Every witness who has testified on this subject /
except Mr.. A. V. Burnes asserts that Howe Co.
claimed the whole of the waters of the west
branch Of east Weaver even the paintlif wit
nesses prove this Mr.. Bates asserts distinctly
that he told Mr.. Howe what he claimed and Mr..
Howe in that conversation claimed all the waters
of the west branch Of east Weaver creek There
is not particle of evidence in this whole volume
of testimony which establishes or tends to estab-
lish any claim on the part of the plaintiffs, eX-
cepting what few concessions were drawn out
from the defendants by threats and the fear OF
having their properly injured, excepting what
witnesses said about defts using only 8 or 10 tom
heads in the summer Of lS5l and the inference
sought to be drawn from the fact that there were
originally eight shares in the Howe Co ditch.
From the evidence in regard to the arbitration,
as it was called, one would Judge that this was a
concession of the same kind, for it seems that
there had been n dispute between other miners
and these defendants, that miners wanted the wa /
ter and threatened to take it, and the citizens Of
Wcayervie and vicinity called miners meet [
ing, at which certain most estimable men, citi- .
zcns of the county, were selected to apportion
or divide the waters between the miners. They
acted in good faith but there is no evidence that
the defendants ever conceded to them the right
TO arbitrate the question for them. or that they
even acquiescCd in the action or decision Of these
arbitrators on the contrary we find that immcdi-
atcy after the decision of the arbitraors $50 call
cd) that doubts arose as TO the construction Of
the award, and a new supplemental award was .
made, again defining the rights Of parties.
find a. a fact however, That this award was based
what at that time was considered the law OF
the land, and the rights Of riparian owners, and
/ am free to confess that believe from the evil /,
derce in The case that the plaintiffs in this action
Al. a., IL,
btraton. | further find that defendants have
been in possession of the waters of the west branch
Of west Weaver for The last five years prior to
the bringing of this suit, and that they have
claimed the right to the use Of the same against
all the world, except the successors of those who
were in possession Of claims and were mining the
same in the bed of the stream below Howe d
Co s dam at the date OF the diversion OF the west
branch of east Weaver creek by Howe CO. / .
find further that the plaintiffs in this suit do not
claim as the successors in interest Of miners in .
the bed Of the stream.
as conclusions Of law upon the above findings
! maintain First, that Howe a Co. having first
laid claim and built dam across the west branch
of east Weaver creek, and appropriated part Of
the water in name Of the whole they had rca-
sonablc time thereafter to appropriate the whole:
Second, that the erection Of dam TO divert the
water, if said dam did so divert the waters, was
a suliecting Of the water to indiuidual use or in
OtutI WOIuh al appIblIldllbH lHllus Ahll us
rights once acquired cannot be forfeited by lapse
Of time until five years have passed, there is no
presumption Of dcft. abandonment, the proof he
ing that the ditch was enlarged in 1852, S53 and .
1855 by the defendants Fourth, that the proof
showing as it does abundantly, that the ditch /
could carry at all times after the water first went
through it more than eight or ten tom beads
The plaintiffs in this action had sufficient notice
of the defendants (IIowe d Co.'S claim to have
put them on their guard or inquiry as to extent
of defts claim: Fifth, that the arbitration as it
is called which is proved herein, establishes no
rights the part of the plaintiffs to any portion
of the waters, and at most could only be the ba- /
sis Cf properly proved) for a suit for damages, /
and not even that as the evidence now exhibits |
it: Sixth, the evidence showing that for five
years prior to the bringing Of this suit that the
defts. were in possession Of the waters now claim
ed by the plaintiffs, claiming the same as their
own, no action can be prosecuted against them |
Seventh, that the award of the arbrators as it is
called, having been recorded, ii did not thereby
operate as a notice for any purpose Whatever,the
law no where recognizing such recordatiOn, eX- 1
cept in cases expressly referred to as judgments /
Of courts Eighth, that party in possession Of
q water right without record showing the true /
owner is in law presumed TO be the true owner, /
hence the deit. being in possession Of the waters
of the west branch Of east Weaver creek with a |
ditch large enough TO carry the whole Of the wa
tiers, impaired by said possession notice to all
world Of their claim to all the waters, and tins
possession having been proved for the last five
years and over to be in the defs. the plainiils
have no right of action.
have examined this case very carefully, and
after the most anxious enquiry ! cannot come to
any other conclusion than the one announced
above. The only evidence which find which
would seem to initiate against these findings is
the evidence of Mr.. Burnes, in which he says
that Mr.. Howe told him that he did not claim all
Of the waters Of the west branch Of Weaver creek. /
This was in the summer of 1851, and it appears
from The evidence Of their witnesses and from all
the witnesses who testified on that particular
point, that the creek only contained eight or ten
tom heads at that time, the amount which it is
admitted Howe d Co.'s ditch would carry 1t is
moreover true, as all the witnesses testify, that
at times there is more water in the creek than
the ditch Of Howe a. Co., deGts, can possibly car
ry, even after its frequent enlargement, and it
may be that Howe did make the declarations as
tn o,dt hat l. lie nx-v,I.,