Arizona weekly miner., 1874-01-30

the atCncss of the season at the time or his set. ticment, or other Ike cause, makes but a small garden and ditch sufficient to supply it. does no, thereby lose his right tO sufficient water to itrlrate the whole hity acres. In other words, he L. uut COuhned to the size ot his first ditch nor Co the particular place where he has taken the water fiUm the stream, nor 10 ditch only, but may make as many as may best enable him tO catry out hts pans if those plans are sufficiently cVi. denccd to the public by nj, nets and hU Ing once sO appropriated the water, may change Us Use from one purpose to another ttn all bat cNccp- uunal cascsl, us from milling tO agriculture, Sc.
 He must, however, use the water with roasona- blc prudence regarding the rights which have, even subscq quently 10 his location, grown up be- low him. so that those thus situated shall not bc injured nor thcir supply oi water unnecessarily Impaired His right Is to use, not 10 waste the water.
 He |. not, however, in all eases bound to turn back the water from hls mills or the surplus water from his fields to iis natural stream upon his own land, for the land might SO lie th.t it would he impossible to do so or that the yAter would be better preserved by conveying t Co the stream through the lands Of the next To Wer claim if there be one, or over the public lands below him if no such settlement adjOus lis claim If one so settled upon stream, no right nt- taching tU its waters below b.m, has allowed his surplus water to flow upon tue lands of d subse. quent settler, aud such settler immediately Ap- propriated the water for proper purposes, he would bc entitled 10 do SO. ll UT mAh'hA hn upprOpTlhtlOn or WMcr, Ouc designatcs the amount or quantity which he claims by written notice, he wil generally be confined 10 the quantity so named, tn behalf Of the rights | ot subsequent claimants but one may make such appropriation without written notice, and m such Cases the amount 10 which he is entitled will de- | pend upon other proofs. II be proceeds to clear | q ranch with the purpose Of farming, milling. &c., | and such purpose be sufficiently apparent to the | public by his acts, he might or might not be eu- ! titled to all the water in the stream. Should it be apparent that all the water usually flowing in the stream b necessary for the purposes indicated, be would be entitled 10 all as completely as II be ! had claimed the same by written notice
 To but one or two of the positions taken by the l parties, aud attempted to be shown in evidence, | do deem 1t necessary here to allude.
 ! The defendant claimed and attempted to show 1 in evidence that, except when there was an abuu- | dance of water flowing in the stream, noHe of l. ! used by him. however he might Use it, could ever ! reach plaintiffs ditch that plaintiffs ditch was, 1 ordinarily, wholly supplied by springs rising be- low defendants ranch, and that a waste or uunec- essary use of the water by the defendant could work him no injury think the prepouderauce of evidence was against this position. think the defendant, by his acts prior to any rights attained by the plaintiff, is shown. by preponderanee Oi evidence, to have appropriated SO much oi the water of the stream, al the point where t passes through bis land. as might, at any time be neces- sary to irrigate his ranch even II the whole of thc water required for that purpose that be might, at any time, make any change in the num- Der of his ditches, where they should tap the stream, provided he consumed, diverted from or caused 10 be lost 10 those below hlm, no portion of it by waste or negligence.
 But, In n country like ours, where water Is sd scarce and valuable, where it's frugal and careful use and preservation involves the growth or breaking up of homes and perhaps settlements, think it the duty Oi courts be especially regard ful of ihe rights or those whose interests are SO entirely dependent upon the and prudent conduct of those whose claims are prior to theirs in point of time and, think, in this ease, tue preponderaDee Of prooi Is to the effect that for considerable time, amounting to about two years after plaintin was in condition 10 cultivate Li: lands, he was considerable loser by tue want O proper care on the part or the defendant in th, manner in which he took from the stream anC used the water in irrigating his ranch.
 Upon the question of damages, little was ssiC by counsel io the argument Of the case. The wit nesses, whose testimony tended to show that thu plaintiff had been damaged, made estimates as tS ] how much more grain or other products plaintiff would or could have raised had defendant DO wasted the water. Perhaps, It would be compe tent for court to give some consideration 10 thi manner of estimating damages, in a case like thls but the cost of the crop lost or injured in thi manner, or it's true value at the time 1t SC lost would seem to me . safer aud more legl basis upon which tc award damages. The fad iugs Of the court are follows:
 That the defendant is entitled to the use of al the water ia said creek flow ing to and through hi said ranch, as against the plaintiff herein. Tha he is bound to its frugal and careful use, tha as much thereof as Is practicable should add tS the supply Of water required for plaintifrs use That the plaintiff Is entitled to judgment agains the defendant on account of the defendants i'm proyldent Use Of the water, as aforesaid, in th, sum ef four hundred dollars, and his costs herein And h Is SO ordered. c. A. TWEED, Judge.
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