The Placer herald., 1859-05-14
NUMBER &c..
Supreme Court Decision.

The Democratic Standard, OF Saturday the 7th
inst, publishes the following synopsis of recent
decision made by the Supreme Court
Mcdonald and Blackburn Us. The Bear River
and Auburn Water and Mining Company.-This
was action for damages. arising from the al
legged diversion of water to which the plaintiffs
are entitled. One B. J. Van Court took possess
sion of tract of the public land on Bear River,
in 1850, and built saw-mll first ard then grist-
mill. upon it. He placed his brother, Alexander,
in possession, who remained there until 1854,
when he delivered the possession to the plaintiff
Mcdonald. The defendants made an appropria-
ton of the water of Bear Creek forty miles
above Van Courts site, in 1851, When McDon-
aid was let into possession by Alexander Van.
Court, the latter executed and delivered to the
former an instrument of writing signed with his
own rame, with scroll annexed, in which he
purports to sell and convey all the right, title
and interets of B. J. Van Court in and to the
saw-mill and the pre-emptiOn of the 160 acres.
Alexander held full and complete power from
his brother to convey this property but it was
nCt under seal. The main question seems to have
been whether Mcdonald by virtue of this instru
ment, acquired the right that accrued to B. j
Van Court by prior appropriation. The Court
hold that the instrument executed by Alexander
Van Court, not embodyng the intention Of the
sgner to execute a sealed instrument, in spite of
the scroll annexed, is not deed, but, accompan-
led as il was by the delivery of possession, and
the erection of improvements, it operates rs an
would be decrecd. This was sufficient to vest
such right in the plaintiff to the water originally
appropriated by Van Court as to enable him to
maintain an action for damages against tres.
passer upon the right. The instrument not teing
under seal, the power of attorney was not affected
by the want of u seal Again it being mere
parol contract, it was enough to bind the princi
pal that it appears upon its face that it in
tended he should be bound Notwithstanding it
runs in the name Of and is signed by, the agent.
The right to water thus appropriated passes with
the right to the mill, ditch, or other property, by
means of which ii is intended to be used.
1t appears that Van Court after permitting the
saw-mill to go down, erected, in partnership with
the other plaintiff, Blackburn, grismll upon
the site to which the water was then applied.
This was after the appropriation by the defend
ants, and they contend that Van Courts right ex-
pired with the saw-mill, for which the water was
originally appropriated. But upon this point the
Court say: 1T by no means follows that because,
in an agricultural district party takes up
mill seat gets good title, we esteem posses
sion of public land to be. to the land, and makes
valuable permanent Improvements. all dependents
upon the use of water as motive power. that he
means only to use the water appropriated for the
first purpose to which he applies it, At any rate
a very clear case should be made that that pur-
pose had been fully answered, before his title to
the water should he held to be abandoned. The
mere fact that he chooses to apply the water
which he had right to use, in whole or in part
if he so choose. to saw timber. to grinding wheat,
is no abandonment of his title to it, But the
question is not so made on this record as to re-
quire from Us Il decision upon this point"
Judgment affirmed Opinion delivered by
Baldwin j., Terry, c. j., and Field j., concur
ring.
BY this decision plaintiffs recover from defen-
dants $2l 900 damages and 600 inches Of water.