Weekly Trinity journal., 1877-02-17
FINDINGS BY THE COURT.

OOlh parties (Orai, printed ana Wrltten),
the Plaintiffs being represented by {. +.
Williams and Howe n Rosenbaum, and
the Defendants by +. =. Lovejoy, j. q.
Irwin and Burch Il Griffith, as counsel n
the case, and the case having been argued
by counsel on both sides and submitted to
the Court for its decision;
The Court now finds the following con-
cluSion OF facts That Henry Jacobs has
no interest in the property in litigation.
That the plaintiffs and other Defendants
hold and are in possession as co-tenants
and tenants in common of the following
described real property situated in Trinity
County, California, to-wit: A certain
water ditch, known as the Conner Ditch,
taking water from Conner Creek or Gulch
ut point about forty yards below the
site of Bartlett & Evans saw-mill and
conducting the water thence to Red Hill
for mining and other useful purposes, tc-
gether with all the rights, privileges and
appurtenances appertalnng thereto, to-
wit: All the waters OF said Conner Creek,
or the first flow thereof to the extent of
Five Hundred inches, under four inches Of
pressure.
That the plaintiffs and Defendants
Bartel Jacobs, David Evans and Charles
III. Bartlett have an estate of inheritance
in said property and own no other estate
i in common in this State. That the Joint
shares and interests of the plaintiffs con-
sists of two undivided fitlhs of said prop
erty, after twenty inches Of water, with
DOT pressure is taken out when the water
is high in said Creek, but when the water
is low and only eighty inches or less Of
water is running in said Creek, then the
said plaintiffs are entitled to two ftths Of
the water leiti said Creek after one fourth
of the water flowing down said Creek is
taken out. That the said Plaintiffs each
own an equal undivided share or portion of
their said two tilths of said common prop
erty. That the joint shares and interest
of the Defendants Bartel Jacobs and
David Evans consists of three undivided
titths of said property, after twenty inches
of water without pressure is taken out, g,
when the water is high in said Creek, but
when the water is low and only eighty or
less inches of water is running in said
Creek, then the said Defendants Bartel
Jacobs and David Evans are entitled to
three iifths of the water left in said Creek
after one fourth of the water flowing down
smd Creek is taken out That the said
Bartel Jacobs and David Evans, each own
an equal undivided share or portion of
said three ffths of said common property
That the Defendants David Evans, Bartel
Jacobs and Charles ii. Bartlett own each
an equal undivided share or portion OF
twenty inches of water (taken out of said
ditch or creek when the water is high
without pressure, but when there is only
eighty inches or less quantity of water
flowing in said creek, then tha said De-
PENDANTS David Evans, Bartel Jacobs and
Charles Ill. Bartlett are entitled TO only
one fourth of the water flowing down said
creek or ditch, and that they own equal
individual portions thereof, and that the
three Defendants last above named are
not entitled to any greater quantity oI
water than last above specified as belong,
ing to them before the Plaintiffs are enti.
/ tied to their said division OF two fiths
and the said Defendants David Evans and
3nrtel Jacobs are entitled 10 their said
division OF three ifths. That the Bill o.
Sale OF the said twenty inches &c of watcl
to the predecessors in interest of said De
PENDANTS Evans, Bartlett and Bartel ia
cobs did nOtalow of any pressure. Tha
the quantity of water in said Conner
Creek. is constantly changing, rising an(
falling or increasing and decreasing daily
more or less, according AS the weather i
1 wet or dry or cold or hot that some o
= to be their shares of the water out in othe
/ bitches tapping Conner Creek consider
= able distances above the head Of the Con
!. ner Ditch, bat have had no gates or othc
: fixtures at the head of these bitches thro
which any fixed quantity Of water woult
flow. That division boxes were place,
in the lower end of the Conner Ditc
before the suit Of McGillivray Us. Evan
ct al. CT Cal. 92) was decided Tha
y since that decision the defendants in thi
a action have generally used their shares O
: the water through the bitches tapping tn
+ Creek above the head of Conners ditch
, i but sometimes have used 1t through til
u Conner ditcn and have sold their share
9 ut times to the Plaintiffs and Others thrc
this ditch. That the parties to this acto
are the same persons as those in the forme
action, except that the Plaintiffs hav
become the owners OF the two fifth share
, that McGlllivray, the Plaintiff in tn
= former action, owned at the time of tina
A action. That the respective shares in tn
Z, property Of the plaintiffs and Defendant
+ respectively is the same as it was who
the case was decided in the Suprem
y Court in 1864. That the property in con
troversy is precisely the same that was i
controversy in the former action. Thi
action, to-wit for partition. In tn
former action plaintiffs and Defendan;
state in the Compliant and Answer tina
Q they wore tenants in common. In thi
action the Defendants in their dmende
Answer deny the tenancy in common an
their counsel insists that the proofs in thi
case show that the parties by their act
have partitioned said property and hold
in severalty. This Court does not thin
so. The parties being still tenants j
common, and the facts in this case bein
substantially the same as they were in TIL
action decided in the Supreme Court, thi
Court deems the reasoning Of the Suprem
Court in that case conclusive, and concur
with the Supreme Court in the opinio
that The only division that the Coul
can make which will definitely and pei
manenty end the dispute OF the partle
and do justice between them is to order
sale and distribute the proceeds" Thf
, decision is conclusive upon the facts i
this case, being almost identical with tn
facts in that case, and that decision mus
!, therefore control this Court. The Com
therefore further finds that the propert
involved in this controversy is Of such
nature and kind and is SO situated that
partition of the same cannot be mad
- without great prejudice and detriment
the owners thereof, and that a sale of tn
same is necessary to do justice betwee
all the parties. That the Plaintiffs an
Defendants and their Grantors and pred
cessors in interest all derived titles fror
the original constructors Of said Come
Ditch, which ditch has the first right [
the waters of Conner Creek, being til
quantity the said ditch is capable Of cal
rying, tO-wit: Five Hundred inches ar
der four inches pressure. That the watt
!. has been used through said Conner ditch
since its construction, chiefly for m;nin
9 purposes, but has sometimes been used fC
n milling and agricultural purposes it hs