$454. Prescription to Flood Lands.-To acquire a prescriptive right to overflow the lands of another, there must have been an uninterrupted enjoyment, under claim of right, for a period of five years; there must have been an actual occupation by the flow of water, to the knowledge of the owner, and such as to occasion damage and give him a right of action; and there must have been such a use of the premises and such damage as will raise a presumption that the owner would not have submitted to it unless the other party had acquired a right so to use it. Grigsby v. Clear Lake W. Co., 40 Cal. 396. Prescription Act.-A right to the flow of water along an artificial cut over the soil of another can not be acquired under the prescription act, 2 and 3 Wm. IV., c. 71, unless the circumstances under which the cut was made show that it was intended to be of a permanent character. Gaved v. Martyn, 19 C. B., N. S., 732. Tin-bounds Ditch.-A prescriptive right to an artificial stream of water, made for purpose of tin-bounders, can not be acquired by twenty years' user when there has been no abandonment of the water by the miners during that time. Gaved v. Martyn, 19 C. B., N. S., 732. § 455. Injuries from Mine Flooded by Reservoir.-Where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbor, he will not be liable in damages. But if he bring upon his land anything which would not naturally come upon it, and which is in itself dangerous, and may become mischievous if not kept under proper control, though in so doing he may act without personal willfulness or negligence, he will be liable in damages for any mischief thereby occasioned. A. was the lessee of mines; B. was the owner of a mill standing on land adjoining that under which the mines were worked. B. desired to construct a reservoir, and employed competent persons, an engineer and a contractor, to construct it. A. had worked his mines up to a spot where there were certain old passages of disused mines. These passages were connected with vertical shafts which communicated with the land above, and which had also been out of use for years, and were apparently filled with marl and the earth from surrounding land. No care was taken by the engineer or the contractor to block up these shafts, and shortly after water had been introduced into the reservoir it broke through some of the shafts, flowed through the old passages, and flooded A.'s mine: held, that the defendant B. was liable for the injury, as having brought a thing upon his land which was capable of mischief if not there retained; and against any consequence of its escape, though without negligence, he must be responsible to parties injured. Rylands v. Fletcher, L. R., 3 H. L. 330, affirming S. C., L. R., 1 Ex. 265. Copper-works.-The permission for a long course of time to the owners of copper-works to use water convenient, but not absolutely indispensable, to their works, from a canal by the owners of the canal, upon consideration of the good-will and freight of the copper-works, in the shape of a mutual understanding, but continued for many years, does not create any equitable right, nor amount to a license. Aliter, had expenditures been made with the knowledge of the canal owners, for the operation of works to which such supply of water was the only resource. Baukart v. Tennant, L. R., 10 Eq. 141. Injury from Water Sold by Ditch Owner.-Where K. discharged water from his ditch above R.'s land in such place that it naturally would and did flow over and upon and injure R.'s land, K. is responsible for such injury; nor can K. shield himself from this responsibility because he may have sold this water at such place to miners, by whom it was used for mining purposes before, in the course of its flow, it reached R.'s land and occasioned such injury. Richardson v. Kier, 34 Cal. 63. § 456. Joint Wrong-doers.-In such case, the fact that the miners so using the water contributed to and enhanced the injury sustained, and are joint tort-feasors with K., will not relieve K. from his liability or affect its measure. Richardson v. Kier, 34 Cal. 63. Threatened Subsidence.-Where mining operations have been carried so far as to cause the subsidence of land, and of the bed of a stream flowing over it, persons claiming rights in the water of the stream are not precipitate in bringing a bill to prevent obvious consequences, although no actual injury or deprivation of the water has yet happened. Elwell v. Crowther, 31 Beav. 163. § 457. Conveyance.-A water right is, under the law of Montana, "such a species of realty" as to require for its transfer the same form and solemnity as the conveyance "of other real estate." Barkley v. Tieleke, 2 Mont. 59. Reservation of Right in Deed-Incorporeal Hereditaments.-A. granted to B. a certain tract of land, "excepting and reserving out of the lands," besides mines, all streams upon the premises with the soil under the same, with the privilege of erecting mills and dams, " and also such part of the said land as may by the said dams be overflowed with water." Afterwards B. conveyed to C. a portion of the same tract with a similar reservation. C. built a dam which flowed back upon the land of B., and being sued in case by B., urged in defense that the land so overflowed was included in the exception of the grant from A. to B., and so never passed to B.; and further pleaded a parol license from A. to overflow the land: held, 1. That the direct interest in the soil had passed by deed from A. to B.; 2. That until A., the first grantor, had exercised his right and erected dams, the reservation was inoperative, and considered strictly as an exception was void for uncertainty, and an action was maintainable against the latter grantee by his grantors; 3. That the parol license from A. to C. to erect the dams was inoperative, as such right, being an incorporeal hereditament, could not pass by deed. Thompson v. Gregory, 4 Johns. 81; S. C., 4 Am. Dec. 255. Insufficient Notice.-The notice of intention to appropriate water must be sufficient to put a prudent man upon inquiry. Kimball v. Gearhart, 12 Cal. 28. Ownership of Water.—Where, in an action for damages to a mining claim by leakage from defendant's ditch, plaintiff asked a witness, "Did you see water splashing over the flume?" defendant was allowed in cross-examination to ask, "Whose water was that you saw splashing over the flume?" although the question might be considered as going to the ownership of the water. Jackson v. Feather River Co., 14 Cal. 19. Previous Right of Action.-The conveyance of a water claim does not transfer the right of action for damages for the past illegal use of the water. Kimball v. Gearhart, 12 Cal. 28. Grant of "Below the Mill."-The grant of "all the water which naturally flows" "below the mill" means the water as it flows from the mill-wheel, the mill being in operation. Oregon Iron Co. v. Trullenger, 3 Or. 1. CHAPTER XXII. WATER RIGHTS. § 457. Vested Rights to Use Water for Mining, etc.-Right of Way for Canals. § 458. Patents, Pre-emptions, and Homesteads, Subject to Vested and Accrued Water Rights. § 459. § 460. Conditions for Use of Water on Public Lands for Reclamation. § 457. Vested Rights to Use of Water for Mining, etc.—Right of Way for Canals.—Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. 14 Stat. 253; R. S. 2339. § 458. Patents, Pre-emptions, and Homesteads Subject to Vested and Accrued Water Rights.-All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section. 16 Stat. 218; R. S. 2340. § 459. Conditions for Use of Water on Public Lands for Reclamation.-The right to the use of water for the reclamation of desert lands, in accordance with the provisions of an act approved March 3, 1877, shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights. 19 Stat. 377. § 460. Navigable Rivers within Public Lands to be Public Highways.—All navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both. 1 Stat. 468; 2 Id. 235; R. S. 2476. |