Tombstone epitaph., 1888-02-25
PRIOR APPROPRIATION.
Decided to be Vested Right by the Supreme
 Court.

oupiChlS SOult oi <hi hohuS h' NH> >N'S~ just decided regarding the prior apPro- priation of water for mining and irrigat- ing purposes, concurred in by Associate Justices Porter and Barnes, taken from the Pacific Reporter;
 This action was instituted in the County Court of Cochise county, and its object was equitable relief. The com plaint alleges that plaintiffs and their predecessors in interest in the year 1877, appropriated the waters of the San Pedro river, to the extent of canal or ditch six feet wide at the bottom and of the depth of three feet that plaintiff, the Contention Consolidated Mining com pany, purchased from the predecessors of these plaintiffs, an interest in said ditch, and the water thus appropriated. The court found as fact that the appro- priation was made at the time alleged 1; but that the amount of water appro- priated was what would pass, without pressure, through ditch five feet at the bottom and of depth of eighteen inches. The defendants, by their learned counsel, object to this finding, claiming that it is not responsive 10 the issue raised by their denial of the alleg gations ; but we think it is. True, it finds, from the evi 'eNce, that the amount of water ap' propriated by the plaintiffs was less than alleged but, certainly, the finding was in direct llne of issue, and responsive to it, that the court found the amount of water appropriated by the plaintiffs to be less than alleged by defendants. It is well settled that courts of equity are not bound by the exact measure of relief asked. The logical inference to be drawn from the position of defendants learned counsel is that, because plaintiffs allege that they had appropriated an amount of water that could pass through a ditch or canal six feet wide at the bottom by three feet deep, which allega- ton was denied by defendants, therefore the court should have found for the defendants, if the proofs showed that plaintiffs were not entitled to all they claimed. If A brings suit against B, in trover, for the conversion of bushel of barley, and B denies the conversion, and at the trial the proofs show the conver- sion by B of only one-half bushel, would not judgment for A for one-half bushel be responsive to the issue?
 It is admitted that plaintiffs made their appropriation is 1877; and that sub sequently in 1884, defendants diverted a considerable quantity of the waters of the San Pedro river into a ditch con structed by them and the court found as fact that such diversion affected the flow of water into plaintiffs ditch. We cannot review the finding of that fact here.
 Now, the only statement of facts in the ktohSStiRe ID tuC CNldSu]C Oi luC uCICI- dant Lenormand, to the effect that he is the owner of the lands which he irrigates and that these lands lie on both sides of the San Pedro river. And this brings us to consideration of the real question in this case. Defendants, by their learned counsel, request the following findings of law: "That defendants are riparian owners ol the waters of the San Pedro, where sand river runs along or through the lands and premises of de. fendants. Second, that defendants as riparian owners of the waters of the San Pedro river, where said river runs along or through their lands, are entitled tc such free and full use of the waters as is reasonably necessary and sufficient fol the purpose of cutivating their lands and for such domestic purposes as are lnolden, to the care of their stock and the affairs of their daily household These requests the court refused, and the defepdants insist that it was error bu We think 1t was not. Does the fact of the ownership of these lands, on both side: of the San Pedro river, by 'he defendant. give them the right to the usufruct of the waters as riparian owners, and that too notwithstanding the prior appropriation '>''n by plaintiffs. Under the com mon law 1t would; under the law a. settled on the Pacific coast, it would not This law IS not only settled here by tht adjudications of the courts, by the long established customs of the country, bu it is ratihed and confirmed by the legis- latlon of congress. We deem no dootrin, more clearly and thoroughly settled ol this coast than this question of wate rights. It is par excellence the doctrin, Of the Pacific coast, Among the miner the custom early grew of according tc him the best right who was first in time The privileges of irrigation soon be came guaged by the same rule; so tha now this doctrine is thoroughly inter, woven into the jurisprudence of the coas and may not be questioned. Riparian rights are the same here as elsewhere wherever they apply but they do no apply where the rights of prior appropria tors have in.ervened. As is very gen orally the case in the Pacific states an,