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WHOLE No. 12.

MARCH 20, 1884.

VOL. II. No. 4.


Continued. WHERE the prior appropriation extends to all the water flowing in the stream at the point of diversion, the appropriator may enlarge his ditch at pleasure, and so increase the amount actually diverted, and other parties whose claims to the stream are subsequent can not complain of such enlargement. Where the prior appropriation extends only to a portion of the stream, and is determined by the amount actually diverted, the measure of such appropriation and of the appropriator's right seems to be the quantity of water which could actually be carried by his ditch in the size and condition in which it was when the subsequent appropriation above him on the stream was made. The rule under these circumstances is thus stated by the supreme court of California: "He is entitled to have the water [of the stream flowing down to his ditch) undiminished in quantity, so as to leave sufficient to fill his ditch as it existed at the time the subsequent appropriations above him were made."? The supreme court of Nevada has formulated the rule in somewhat more precise terms: “It seems that the quantity of water appropriated is to be measured by the capacity of the ditch or flume at its smallest point; that is, at the point where the least water can be carried through it.”: It may well be doubted, I think, whether there is any material difference between

? James v. Williams, 31 Cal. 211. In greater than is necessary to irrigate his Feliz v. City of Los Angeles, 58 Id. 73, it farming land, he must be restricted to the was held that the city had acquired a right quantity needed for the purposes of irrigato all the water of a river, and that plaint- tion, of watering his stock, and of domestic iff's

's use was permissive, not adverse. uses; but if the capacity of his ditches is

* Bear River etc. Co. v. New York M. not more than sufficient for those purposes, Co., 8 Cal. 327.

then, under the facts of this case, no change "Ophir Silver M. Co. v. Carpenter, 6 having been made in the ditches since their Nev. 393; 4 Id. 534. Also in Barnes v. construction, and no question as to the Sabron, 10 Id. 217, the court held that right of their enlargement being involved, where the prior appropriator of a stream he must be restricted to the capacity of his has constructed ditches in order to irrigate ditches at their smallest point. his land, if the capacity of his ditches is No. 12-1


these two modes of expressing the rule. But the actual physical condition of the ditch at the time the use of the water by its means began, and during some period of time after such commencement, and the amount of water actually diverted and carried by it at and during these times, do not always furnish an inflexible test or measure of the extent of the appropriator's right. The ditch might be so imperfectly constructed, with irregular and improper grades, and with incomplete excavation, that it could not actually carry so large an amount of water as its general plan and size rendered it capable of carrying, and as its proprietor had intended to appropriate. Under these circumstances, unless the use of the ditch had continued so long a time as to show an intention of the appropriator to adopt it in its existing imperfect condition, the proprietor would be entitled to perfect his ditch by removing obstructions, improving the grades, and the like, so that it could actually carry the amount of water indicated by its general size and character, and originally intended to be appropriated; and the increase in the actual flow of water thus caused would not be an invasion of the rights of subsequent appropriators, although their rights accrued before the improvements were made. The case of White v. Todd's Valley W. Co.' arose out of such circumstances. The defendants had made a ditch for mining purposes; and the plaintiff afterwards made a ditch, taking water from the same stream. The plaintiff complained because the defendants had enlarged their ditch, after the plaintiff's appropriation, and had thereby caused a diversion of a greater amount of water, to the plaintiff's injury, and prayed for an injunction. The court held that the defendants were not restricted to the amount of water actually taken by their ditch at the very beginning of its use, unless by its general plan, size, and grade it was not capable of carrying more water than was then actually taken by it. If by reason of obstructions in the ditch, or “irregularity of its grade at that time, it was not capable at first of taking so much water as its general plan and size would indicate, the defendants would have a reasonable time within which to remove such obstructions or to adjust the grades, and could then divert the water to the full capacity of the ditch. But if the defendants continued to take only the original quantity of water long enough to indicate an intent to divert only that amount, or if they delayed for an unreasonable time to remove the obstructions or regulate the grades, then they would be restricted to the amount thus actually taken at first, and the plaintiff would be entitled to all the residue. The rule laid down by this decision is plainly

*8 Cal. 443

confined, in its scope and operation, to the very special circumstances above described; it can hardly be regarded as furnishing any general test or measure of the amount included in a prior appropriation. A few other cases, which deal only with questions of fact as to the amount of water appropriated, are cited in the foot-note.

5. Subsequent appropriation, and the relations between successive appropriators of the same stream.

In the previous sections, which particularly describe the mode of effecting a prior appropriation, the rights of the prior appropriator and the amount of water included within a prior appropriation, the relations of the subsequent appropriators, and especially the limitations or restrictions upon their rights growing out of the superior claims of the prior appropiator, have necessarily been involved and stated. I shall not repeat the discussions of these previous sections, and reference must be made to them in order to obtain a full view of the relations subsisting between the prior and the subsequent appropriators and the limitations placed upon the rights which can be acquired by the latter parties. In the present section I purpose to describe the affirmative rights, which may be obtained and held by subsequent and successive appropriators, to divert and use the waters of a public stream which have already been appropriated by the prior acts of another party.

Whenever a certain person, A., has made a prior appropriation at a certain point on a stream, even though of the whole amount of water, it has already been shown that another party, B., may make a subsequent appropriation at a place higher up on the stream, may divert and use the waters, and return them, undeteriorated in quality and undiminished in quantity, into the natural channel of the stream above the head of A.'s ditch, and no right of A.'s would thereby be infringed, because his use of the water would not be in any way interfered with. This particular case is simply an instance of the following general doctrine, which has been firmly settled by numerous decisions :

A prior appropriation having been made on a public stream, the residue or surplus remaining of its waters, not embraced within the amount of such prior appropriation, may afterwards be appropriated, either above or below on the same stream, by other parties, if no interference with the rights of the prior appropriator is thereby caused.

• Higgins v. Barker, 42 Cal. 233; Rey. Haggin, 61 Id. 305; Stein Canal Co. v. nolds v. Hosmer, 51 Id. 205; Dougherty v. Kern Island etc. Co., 53 Id. 563.

6 See ante, p. 76, vol. 2.

The doctrine extends to and admits of a succession of such appropriators; and there is no limit to its operation, except such physical limits as arise from the size of the stream itself and the amount taken by each claimant. Among the successive appropriators, each is in the position of a prior one towards all who are subsequent to himself.' This general doctrine has been stated in the following modes by different decisions: “In controversies between prior and subsequent appropriators of water, the question is, Has the use and enjoyment of the water, for the purposes for which the first appropriator claims it, been impaired by acts of the subsequent claimant ?"8 A decree prohibiting a party situated on a stream below the dam at the head of a ditch belonging to another person from diverting or interfering with the water above such dam, does not hinder him from using the surplus water which flows down the stream after the ditch is supplied.' The surplus water of a stream, after a prior appropriation, may be the subject of a new appropriation, and the second appropriator will have a paramount right to use all the waters which are not required for the special purposes of the prior appropriator." If a prior appropriator of water for mill purposes suffers a portion of the water, or the whole amount of it, after driving the mill, to flow down its accustomed channel, other parties below him on the stream may appropriate this residuum, so as to obtain a vested right to its use." In Lobdell v. Simpson," the doctrine was briefly but comprehensively stated: “A second appropriator has a right to have the water continue to flow as it flowed when he made his appropriation.” The same court said, in Proctor v. Jennings:18 “A person appropriating a water right on a stream already appropriated acquires a right to the surplus or residuum which he appropriates; and those who hold the prior rights, whether above or below him on the stream, can in no way change or extend their use of the water to his prejudice, but are limited to the rights enjoyed by them when he secured his own."

It makes no difference in the application of this doctrine how the surplus or residue of the water may arise. It may be constant, resulting from an appropriation of a portion only of the water; or it may be intermittent, resulting from an appropriation of all the water during only a part of the time. If a prior appropriation is of such a character that it only takes and uses the water on certain days of the week or month, a second appropriator may acquire a vested and paramount right to the same amount of the water flowing through the stream on the other days not embraced in the prior claim. A. having appropriated the entire water of a stream to be used only on Mondays, Tuesdays, and Wednesdays, B. may subsequently acquire an equally perfect right to use the same quantity of the water on Thursdays, Fridays, and Saturdays." This rule is stated in the Nevada case in the most general terms: “If the first appropriator only appropriates a part of the waters of a stream for a certain period of time, any other person may not only appropriate a part or the whole of the residue, and acquire a right thereto as perfect as that of the first appropriator, but he may also acquire a right to the quantity of water used by the first appropriator at such times as it is not needed or used by him.”

7 Stein Canal Co. v. Kern Island etc. Co., 53 Cal. 563; Broder v. Natoma W. Co., 50 Id. 621; Smith v. O'Hara, 43 Id. 371; Higgins v. Barker, 42 Id. 233; Nevada W. Co. v. Powell, 34 Id. 109; Davis v. Gale, 32 Id. 26; Hill v. Smith, 27 Id. 476; American Co. v. Bradford, Id. 361; Mc. Kinney v. Smith, 21 Id. 374; Ortman v. Dixon, 13 Id. 33; Butte C. Co. v. Vaughn, 11 Id. 143; Kelly v. Natoma W. Co., 6 Id.

105; Lobdell v. Simpson, 2 Nev, 274; Proc-
tor v. Jennings, 6 Id. 83; Barnes v. Sa-
bron, 10 Id. 217.

8 Hill v. Sunith, 27 Cal. 476.
9 American Co. v. Bradford, 27 Id. 361.
10 McKinney v. Smith, 21 Id. 374.
11 Ortman v. Dixon, 13 Id. 33.
12 2 Nev. 274.
13 6 Id. 83,

The rights of the subsequent appropriator conferred and protected by this doctrine may exist and be exercised under the following different conditions of fact: (1) A subsequent appropriator may always take and use any amount of water at a place higher up the stream than the point of the prior appropriation, and without any reference to the amount embraced in such prior appropriation, provided he returns all the water after its use, undeteriorated in quality, to its natural channel in the stream, before it reaches the prior appropriator's place of division—the head of his ditch ; since under these circumstances the prior appropriator is in no manner injured. (2) When a prior appropriation includes only a certain portion of the water flowing in a stream—measured, for example, by the capacity of the ditch—a subsequent appropriator, at a place higher up on the stream, may always take from the stream, use and consume without returning, any quantity of its water, provided he leaves flowing down the natural channel after his own diversion a sufficient amount of the water at all times to meet the demands of the prior appropriation; in other words, so as not to lessen nor interfere with the amount which the prior appropriator is entitled to draw off by his means of diversion. (3) When a prior appropriator takes and uses the whole or any portion of the water of a stream, for milling or other similar purposes, by which the water is not consumed, and then after such use returns the water to the stream so that it thenceforth flows down its natural

14 Smith v. O'Hara, 43 Cal. 371; Barnes Creek W. Co. v. Perdew, I West Coast 5. Sabron, 10 Ner, 217; and see Lytle Rep. 866.

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