Year: 1859

Or JUICE DAINGERFIELp, on A MorToN FOR New


TRIAL IN THE CASE OF WATSON & COOPER ag


WARE. AND OTHERS, IL THE NINTH DISTRICT


COURT:


The attorney for the plaintiffs who first argued
this motion before me, asserted that Judges are
apt to he vain of their opinion" but pays me the
compliment Of saying, that did he not know
that I was an exception to the general rule he
would not press this motion before me-" thank
him for his good opinion of myself, but believe
he has underratcd the character and intelligence
Of the Bench in this State when he makes the as
scrtion. | believe that truth is the goddess at
whose shrine all good men should and do worship.
and am pleased to bear my testimony to the fact
that the Bar has lent it's aid to the Bench so far
ms my experience goes, to elicit truth. am not,
however, the apologst of either the Bar or the
Bench, and wll proceed TO consider the merits of
this motion.


The first reason assigned by counsel why the
findings Of this Court and the Judgment Of law
thereon should he set aside is, that the Court err
ed when it found that Mr.. Howe in his conversa-
ton with Mr. Bates in the Fall Of 1851, Gin which
conversation Mr.. Bates claimed a certain portion
of the waters in the Howe & Co, ditch for him
self claimed all of the waters of the west branch
of East Weaver creek. The plaintiffs counsel
contend that Mr.. Bates intended TO say that Mr..
Howe claimed all the waters then running in the
creek, which at that time was only eight or ten
tom heads or, in other words, that he claimed
the waters at that time, and that the words that
time in his evidence refers to the water and not
to the date of the conversation.


1t matters not whether it means the one or the
other in my opinion, for the fact that at the date
of LAYING his claim for the company, Mr. Cox
swears that their Uhe defendants) intention as
declared by posting notices and building dam,
was to take all the waters of the west branch of
East Weaver creek, and the fork of the west
~ net WnaUar furthpr tina
they did Immediately after the posting of notices
as aforesaid, commence the construction of the
ditch making it of the capacity of eight or ten
tom heads and the evidence of many witnesses
to wit Stacy, Gilfoil, Myers, Hamln Hazlerig
and others, all support Mr.. Cox as to the declared
intention Of the company GLOVE Coz in ap-
propfating the waters of the creek. Mr.. Ham
lin saws that Mr. Howe, in conversation in the
spring of 1851, very shortly after the dam was
placed at the head of the race of Howe Co.,
told him that they claimed all the waters of the
west branch of East Weaver, and that his notice
to that effect, coupled with his improvements,
would hold it, he thought. Mr.. llamln also
states, that in the same conversation, Mr. Howe
(as do Mr. Cox and another witness) said that the
west branch Of East Weaver had been surrender
ed by them to the Clough race, the same that is
now owned by Sloan, one Of the defendants in
this suit. There is no evidence which TO my
mind shows an abandonment of the rights thus
acquired, either on the part of Howe Co OF
Clough & Co. The evidence as to the size of the
Howe Il Co. race when first commenced seems
at first to be somewhat conflicting but when we
consider that water in those days Gn lS5D was
not measured by the inch as it now is, and tom
heads of water were what a company using a
tom wished to use, it is very easily recOnciled,
but whether the ditch appropriated eight tom
heads or one hundred in the spring of 1851, can
make no difference in the decision of this case,
for if it be true as admitted by the plaintiffs that
Mr.. Cox swore truly, part Of the water was ac-
tually appropriated in the name of the whole and
within five years thereafter the whole stream was
turned into the defendants ditch, and by relation
the appropriation dated back to the notice The
Supreme Court has decided that it was error in
the District Court to instruct jury thata notice
of a claim was not an appropriation or evidence
of possession but on the contrary say that e" it is
one of a chain OF facts which when finished makes
a complete title, and that the doctrine of relation
applies giving date to the right as of the notice..


This doctrine is so just in itself, and the rea-
sons upon which it is based are so equitable that
Courts should in all cases enforce it. No one can
complain OF it. for If the first claimant Of water