WHENEVER a prior appropriation has been made for a certain kind of purpose or use, at a certain place, the appropriator may, as against other parties whose rights have accrued subsequently to his own, change the place of his use for the same purpose, if the amount of water taken by him is not thereby increased beyond that of his original appropriation; and it seems that he may, as against such parties, change the nature of the purpose or use to which the water was applied, provided the amount of water thereby taken is not increased, or the interference with or burden upon the subsequent claimants or appropriators is not augmented. But such a change of place or of purpose is not permitted, as against parties who have acquired subsequent rights, when it would enlarge the amount of water used beyond that of the original appropriation, or otherwise increase the burden imposed upon them by such appropriation. These conclusions seem to be established by the decisions. In Woolman v. Gawiger,' it was held that a prior appropriator for mining purposes, at a certain place, may extend his ditch, and use his water, to the extent of his original appropriation, at any other place, for the same or for other purposes. Such an appropriator, who has duly constructed his dam and ditch, need not give an actual notice to subsequent appropriators of his intention to extend his ditch, and reclaim his waste water, and use the water at another place. In Maris v. Bicknell, the rule was stated that a mere change of the use from one mining place to another, where the appropriation was for mining purposes, does not forfeit nor abandon nor affect the prior right of the appropriator. In McDonald v. Bear River etc. Co., after declaring that the appropriation of water for mill purposes stands on the same footing as an appropriation for mining, the court said that when a party has erected a saw- 11 Mont. 535. No. 10-1 27 Cal. 261. $ 13 Id. 220. mill and appropriated the water of a public stream for it, he may use the water for a grist-mill which he subsequently erects. In Kidd v. Laird, the doctrine on this subject was announced in the following broad and general manner: "A person entitled to divert a given quantity of the water of a stream may take the water at any point of the stream, and may change the point of diversion at pleasure, if the rights of others are not injured by such change. This right of change does not depend upon the mode of acquiring the right to use the water, whether by express grant or by prescription, or whether by parol license or presumed consent of the proprietor. The difference as to the origin of the right affects the mode of determining its existence and its extent [i. e., the amount of water appropriated], and not the manner of its exercise and enjoyment. The proper limitation upon this doctrine was stated in the subsequent case of Butte T. & M. Co. v. Morgan, which held that a party appropriating and diverting water at a certain point can not afterwards change the place of diversion so as to prejudice another person whose rights have subsequently accrued. And it was further said that the case of Kidd v. Laird does not hold anything conflicting with this conclusion, and the decision in that case, as there explained and limited, was reaffirmed. In Davis v. Gale, the court again laid down the general rule in the most unequivocal manner: "A person who has appropriated the water of a stream, and caused it to flow to a particular place by a ditch, for a special use, may afterwards change the use and the place at which he used it, without losing his priority as against one who dug a ditch from the same stream before the change was made. Such a person appropriating water for the working of a particular mine may, after he has worked out and abandoned said mine, extend the ditch, and use the water at other points, without losing his priority as against a person who acquired rights in the stream subsequently to his appropriation. Appropriation and use of water for beneficial purposes are the tests of right in such cases, and not the place and character of the particular use." In Nevada W. Co. v. Powell,' the negative side of the rule was again applied, and the court said: “If a person has appropriated a portion of the water of a stream, and has made a dam and ditch amply sufficient to render his appropriation available, and has thereby acquired to use said portion only of such 415 Cal. 161. 519 Id. 609. 632 Id. 26. 6 734 Id. 109. The facts of this case, however, to which the decision applies, show an increase in the quantity of water used-in the extent of the appropriation, rather than a change in the place or in the kind of the use. water, and in said manner only, this will not prevent other persons from acquiring a right to the surplus water of the stream, or to its bed or banks, or to the adjacent land, to any extent which will not interfere with the right previously acquired. When rights of subsequent appropriators once attach, the prior appropriator can not encroach on them by extending his use beyond the first appropriation. In such a case the first appropriator can not extend his claims or change the manner of his appropriation, to the injury of the second appropriator, any more than the second can do so to the injury of the first; each is, in respect to his own appropriation, prior in time and exclusive in right." On this ground, it was held that the prior appropriator was not authorized, by raising the height of his dam, to cut off or diminish the flow of the surplus water which had been thus appropriated by the defendants. Such being the rights of the appropriator, any interference with the water of the stream itself, either above or below the point of his diversion, which hinders the full enjoyment of those rights, and any interference with the water while in the ditch, dam, or reservoir, or with these structures themselves, are injuries, for which suitable remedies may be obtained. A ditch may be injured, or even destroyed, by mining under it, thereby causing the surface of the soil over which the ditch runs to crack and settle. In such a case the mine owners are liable to the proprietor of the ditch when the injury has been caused by their negligent or unskillful manner of conducting their mining operations; but whether they are liable for such an injury in the absence of all negligence and unskillfulness is more than doubtful. In this case, which was brought to restrain the mining operations under such circumstances, the court say that the plaintiff has a right to a ditch on the surface of the soil, and the defendants have a right to mine under the surface. These rights are not necessarily incompatible or conflicting. To the two parties so situated the maxim, Qui prior est tempore potior est in jure, does not apply, but rather the maxim, Sic utere tuo ut alienum non ladas. How far a court of equity will relieve against such an injury when no negligence or lack of skill is charged, the court expressly refrain from deciding, and suggest the following query: "Whether ditch property in the mining regions, although conceded to be real estate, is to be regarded by courts of equity with the same measure of favor as that which is extended to land held by owners for its own sake, and not put to use for an 8 Clark v. Willett, 36 Cal. 534. ulterior object, is doubted, but not decided." It is abundantly settled that parties engaged in mining operations will be restrained from interfering with, or destroying, or washing away the ditch belonging to another person. The rights of a prior ditch owner as against persons engaged in mining were fully established by the case of Gregory v. Nelson," in which the following points were decided: If the complaint avers ownership by the plaintiff of a certain ditch, and that the ground over which it runs was vacant and unoccupied when it was dug, and the plaintiff has used it for years for mining purposes, and the answer does not deny these allegations, nor set up any prior right of defendants to said ground, nor any claim or right of defendants to destroy the ditch, the court should enjoin the defendants from destroying or interfering with the ditch upon the pleadings, regardless of the testimony. If a party owns a ditch, and the right of way for the same, to conduct water for mining purposes, and has acquired such right by prior appropriation, the court, in an action brought to restrain the defendants from washing away the ground, should not allow the defendants to wash away the ditch, provided they build a flume or other aqueduct in place of the ditch of sufficient capacity to carry the water flowing through it. A court of equity had no power to make such a decree under these circumstances. A court should not license a trespass to ditch property in the mining regions, nor compel the owner to exchange his ditch for some other means of conveying the water flowing therein. Interference with the water to which the appropriator is entitled, whether flowing in the stream or running through his ditch, may either diminish its quantity or deteriorate its quality. These two kinds of inquiries will be considered separately. Of course the mere use of the water by another person, when its quantity is not thereby lessened nor its quality deteriorated, is no injury to a prior appropriator. If, therefore, A. owns a ditch and has the right to divert the water of a certain stream by its means, and B. subsequently takes water from the same stream at a place above the head of A.'s ditch, and uses it for his own purposes, but returns it back undeteriorated in quality into the stream before it would reach A.'s ditch, or even into the upper part of the ditch itself at a point before A. has use for it, no injury is thereby done to A., and he has no cause of action against B. therefor." Whenever the rights of a prior appropriator exist, they are equally protected from interference and consequent injury by parties subsequently locating on the stream 9 41 Cal. 278. 10 Yankee Jim's Union W. Co. v. Crary, 25 Cal. 504. or using its water either above or below him." The diversion of the water of a stream is a private nuisance to the prior appropriator who is injured thereby, and he can maintain an action for such nuisance. For a past diversion the only remedy is a recovery of damages; but when the diversion is continuing, equity will interfere by injunction." It seems the injured party may himself abate the nuisance. When A. attempts to erect a dam for the purpose of diverting the water of a stream at a certain place, and such diversion is unlawful as against B., who is a prior appropriator and has a dam at a lower point on the stream, it is held that B. may oust A. from possession, and may prevent the construction of his dam." Where a party has located on a stream, erected a mill, and appropriated the water for its use, in an action against a mere trespasser to recover damages for diverting the water, it is sufficient that the complaint alleges the plaintiff's possession of the land, the mill site, and the mill, without averring riparian ownership or a prior appropriation of the water." In a suit to obtain relief against an injury to the plaintiff's rights as a prior appropriator, it is no defense whatever that the defendant's works are the more valuable or his interests the more important. Where an appropriation has been made at a particular point, a person subsequently locating or constructing works on the same stream above must not impede the regular flow of the water, if the prior appropriator would be injured thereby. A mere trivial or temporary irregularity caused in the flow does not constitute a cause of action; but a sensible injury will be restrained by injunction, as well as compensated for in damages.' Where a ditch owner uses a ravine as a part of his ditch to conduct the water of a stream which he has appropriated, the natural waters of such ravine belong to him as the first appropriator thereof, and an action will lie in his favor for an appropriation or diversion of such waters by a third person." 16 15 With respect to deterioration in the quality of the water, caused by subsequent locators or claimants higher up the stream, there was at an "Hill v. King, 8 Id. 337. 12 Tuolumne W. Co. v. Chapman, 8 Id. 302; Parke v. Kilham, 8 Id. 77. In Brown V. Ashley, 16 Nev. 312, the court held that where the act complained of is committed under a claim of right, which, if allowed to continue for a certain length of time, would ripen into an adverse right, and deprive the plaintiff of his property, he is not only entitled to an action for the vindication of his right, but also for its preservation. In actions, therefore, for the diversion of water, where there is a clear violation of an established right, and a threatened contin uance of such violation, it is not necessary for the plaintiff to show actual damages, or even a present use of the water, in order to authorize a court to issue an injunction restraining the actual or threatened diversion, and to make it perpetual. 13 Butte T. M. Co. v. Morgan, 19 Cal. 609. 14 McDonald v. Bear River etc. Co., 13 Id. 220. 15 Weaver v. Eureka Lake Co., 15 Id. 271. 16 Phoenix W. Co. v. Fletcher, 23 Id. 481; Natoma W. & M. Co. v. McCoy, 23 Id. 490. 17 Hoffman v. Stone, 7 Cal. 46. |