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.

The following opinions OF the Supreme
Court were filed in the Office of Clerk ]. 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 transoose
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 Lassen 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
Til, 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 up
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 a
judgment enjoining the defendant from in
terfering with q head dam by means of
which the plaintiff diverts water from a
stream (the same as referred to in the above
opinion), which flows in its natural course
through the defendants lands. This head
dam and connecting ditch were constructed
by plaintiff on the land now owned by de-
PENDANT while the title thereto remained in
the Government, and they have been used
to divert the water of the stream to lands
belonging to the plaintiff. The defendant,
owning land bordering on the stream be-
low plaintiffs dam, and needing the water
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. But
it is not found that plaintiff will be
actually damaged by The acts done
and threatened by the defendant ex-
cept nominally. 1t is found that the
water is useful and necessary for the irriga-
ton of plaintiff land, and that he has d.
vertedit for that purpose; but it is not found
that he has ever used it for that purpose, or
that he has ever raised or attempted to
raise any sort of crops on his land For
aught that appears, he has simply turned
the water out of the stream and allowed it
to run to waste; and when defendant
turned it back into its natural channel
through his land where he did use it for
beneficial purposes), it does not appear that
plaintiff was at all damaged The findings
shows he was not damaged. Under such
circumstances party claiming as an ap-
proprietor has no right to an injunction
against riparian proprietor, and the iudg-
ment of the lower Court is therefore
erroneous. For the reason above specified
the judgment is reversed and the cause re-
manded,