Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-07-04
RECENT DECISIONS.
THE SUPREME COURT READS A SER.
MON TO CARELESS ATTORNEYS.
Lassen County Cases Involving the
Right to Appropriate
Water.

LIZ AOAiO"AhS OlAA'AOhS Va lhC
Court were filed in the Office of Clerk J. S.
Williams, of the Sacramento District, on
yesterday:
Peregoy and Hyer, defendants and ap-
pellants, VS.. James Sellick, plaintiff and
respondent. Before giving the opinion,
the Supreme Court says: "The record and
the brief of the appellants in this case bear
the above title, which, in view of the long
settled practice of the Court, not to trans9ose
the names of the parties when the defend
ant appeals, is confusing, if not positively
misleading. We take the occasion to ex-
press hope that we may receive no more
records or briefs entitled in this way"
Sellick, the plaintiff, owned lands border
ing on natural stream in Lsssen county.
He went above his land-on land of the
Government-put a dam in the stream,
and, by means of ditch of sufficient ca
pacity heading above the dam, diverted all
the water of the stream, which he con-
Quoted to the high parts of his own land,
and continued to use this to irrigate crops
of grass, etc., and for domestic purposes.
Subsequent to this appropriation by plain
| tiff, the defendants acquired from the
Government lands bordering on the
stream above plaintiffs dam, and COM
| menced directing water from the stream
| by means of bitches for the irrigation OF
their crops. The plaintiff thereupon COM
| menced this action to quiet his title to the
| full flow of the stream down to the head Of
| his ditch. In his complaint he alleges his
| ownership of the land and appropriation OF
| water for beneficial uses.
The prayer of the complaint is that de.
PENDANTS be required to set forth their
| claim and that plaintiff have Judgment.
To this complaint the defendants inter-
posed general demurrer which was over.
ruled, whereupon they answered, denying
plaintiffs appropriation and setting M
| their riparian rights end use of the water
| diverted by them for irrigation of their
crops.
The case was tried by the Court upon
these issues. Findings, conclusions and
judgment were made and given in favor OF
the plaintiff, from which the defendant
appeals.
The judgment is affirmed.
OF THE SAME SORT.
B. P. Peregoy. defendant and appellant
VS.. Jacob McKissick, plaintiff and re.
spondent. There is the same fault in the
emitting Of this appeal as noticed in the
above one. 1t should be entitled McKissick
vs.. Peregoy. This is an appeal from g
judgment enjoining the defendant from in.
| terfering with q head dam by means Of
which the plaintiff diverts water from q
stream (the same as referred to in the above
| opiniOn), which flows in its natural course
through the defendants lands. This heaG
dam and connecting ditch were constructed
| hD INlaintit m tho land \
PENDANT while the title thereto remained in
the Government, and they have been useG
| to divert the water of the stream to land.
| belonging to the plaintiff. The defendant
owning land bordering on the stream be
low plaintiffs dam, and needing the watel
| for irrigation, has several times removed
portions of the dam, SO as to cause the
water to flow down to his own ditche-
and claims the right to Go so. Blu
it is not found that plaintiff will b.
actually damaged by the acts done
and threatened by the defendant ex
cept nominally. 1t is found that thu
water is useful and necessary for the irriga
ton of plaintiff S land, and that he has di
verted it for that purpose but it is not founC
that he has ever used it for that purpose, o.
that he has ever raised or attempted t
raise any sort of crops on his land. Fo
| duSiI 'hat Appears, NC las Sharply luTuet
the water out of the stream and allowed i
to run to waste; and when defendap
turned it back into its natural channe
| through his land (where he did use it TO
beneficial purposes), it does not appear tha
plaintiff was at all damaged The finding
shows he was not damaged. Under sue!
circumstances a party claiming as an ap
proprietor has no right to an injunction
against riparian proprietor, and the judg
ment of the lower Court is therefor
erroneous. For the reason above specife
the judgment is reversed and the cause re
manded.