The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1892-03-05
MINER AND FARMER.
A Supreme Court Decision of Inter-
est to Both.
arrigationists Sustained in Their Ap-
preparation of an Abandoned
Mining Water Right.

In the case of Kirman ct al. respond
ents) VS.. Hunnewill ct al. appellants,
the Supreme Court has just denied an APP
peal from decision of lower court ask
ing for new trial. The case is of interest
10 both farmers and miners, more especi-
ally If national law should be passed
under which hydraulic mining may be
resumed, for there are many instances
probably in this State where the circum-
stances and conditions are much the same
as in the case considered.
The action was brought to enjoin de-
PENDANTS from diverting the waters OF a
natural water-course, and to recover dam
ages for past diversion thereof. Judg-
ment was rendered in favor of plaintiffs,
and defendants made motion for a new
trial. The court denied it, and the appeal
was taken from the order denying said
motion. There was no appeal from the
judgment.
The whole force of the arguments of
appellants brief was directed to the
point that the findings did not support
the Judgment. The Supreme Court says
IL is definitely settled that the insufficiency
Of the findings to support judgment
cannot be considered on an appeal from
itn order denying new trial. That point
can be raised only on an appeal from the
judgment.
AS early as 1862 plaintiffs grantors set
tied upon lands in Mono County, through
which runs natural Water-course called
Dogtown Creek, and since then plaintiffs
and gr2ntors have continued TO use
water from said stream TO irrigate their
land and for general family and domestic
purposes. The said lands were then pub
lie lands, and they afterwards commenced
10 obtain title thereto, perfecting their
title to part Of the land IN 1871, and gradu-
ally during the next four years to the
whole.
sit is not necessary" says the court,
''to accurately determine what rights
plaintiffs had to the use OF the water dur
Ing the period when they were taking
> cps to acquire the title Of the Govern
lnent. because after they received the first
patent, in 1871, they had all the rights Of
riparian proprietOrs, and the decision Of
the case would be the same as if their
rights were held as commencing only
from that date"
Dogtown Creek runs in a southerly
direction over plaintiffs land and had
tributaries coming in above such land
! 1860 an association of miners diverted
all the waters of the West Fork, except
about forty inches, to work mines at
Monoville, which is east of the watershed
Of DOgtown Creek. The ditch which
ooned, and from 1864 to 1856 was entirely
unused, the unincorporated association
which originally built it becoming en-
tIrely disOrganiZed. During said period
from 1864 TO 1886 all of the water flowed
down Dogtown Creek and was used to
irrigate plaintiffs land.
The defendants sought to connect them
selves with the right of the old disbanded
organization of miners OF 1660-62, and for
this purpose offered papers which the
court ruled out. The first was a money
judgment in the District Court, in favor
Of one Shaw against the United Water
Ditch COmnany'; the next was a deed
10 said Shaw from a Constable, purport-
ing to have been made in pursuance of
sale on an execution from a Justices
Court; next was q deed from Shaw to
grantoT of defendants. The judgment
was rendered and the deeds made in 1862
and 1868.
The Supreme Court says there are OBJ
JecHOnS to this evidence, even if it were
material. It is difficult to see how a valid
judgment could be obtained against such
& body as Ian association of miners"
or, how mere money judgment could
be evidence Of title to real estate. But
the old ditch and water-right by which
the water was for q time diverted had
been abandoned for more than twenty
years when the defendants again under
took 10 carry the WAFER beyond the water
shed, and during most Of the time the
plaintiffs not only had the right to it as
riparian owners, but had also apprOpri-
ated it to particular uses. If the old
association of miners could now be
materialized and made a present legal
equity, it could not maintain the right
which appellants sought to maintain un-
Ger it.
Decisions were cited to the effect that
a water-right may be changed both as to
point of diversion and place of use, but
after the right has been destroyed by
abandonment there is nothing left to
change.
The decision was rendered by McFar-