priator 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 diversion,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 channel, a subsequent appropriator lower down the stream may appropriate and obtain a vested right to the whole or any part of the same water so discharged and flowing down the natural channel after its former use. (4) When a prior appropriator takes and uses a certain portion or quantity of the water from a stream, and by the nature of his use consumes the same without restoring it or any part of it to the stream, then the surplus or residue of the stream not so diverted but continuing to flow down the natural channel, or any part thereof, may be subsequently appropriated by another party lower down the stream, and his rights of appropriation in such surplus or residue will

be vested and perfect. (5) In all these conditions, a subsequent appropriator may appropriate and obtain a vested right to use the water during the fixed intervals of time when it is not taken and used by the prior appropriation. All the possible cases which can arise may be accounted for and explained by a combination among the foregoing general conditions of fact. Whenever successive appropriations have been properly and lawfully made on the same stream, each party is, with respect to the extent of his appropriation, the amount included therein,-in the legal position of a prior appropriator towards all the others.1

§ 86.

Division of increase in stream.

In addition to the general doctrine thus stated and illustrated, the following special rules, applying to particular circumstances, have been the subject-matter of decision. If two persons suc⚫cessively appropriate water of a stream by means of their ditches, and a third person turns into the same stream, at a place higher up than the heads of both these ditches, additional water brought by means of his own ditch from another and different stream, without any intention of recapturing the same, the water thus discharged becomes publici juris,-to all intents a part of the natural waters of the stream into which it is emptied; and it belongs to the two appropriators according to their priority of right, -the one having made the prior appropriation is first entitled to the increased flow to the extent of his appropriation."

A person who had located a mill-site on a stream, and appropriated the water for the purposes of his mill, sold and conveyed all his interest in the water of the stream to the proprie

[Where old ditches are superseded by agreement by a new one, and nothing is said in regard to the division of the water, the rights of the parties are to be determined according to their original appro

priations, and not according to their interests in the new ditch. Rominger v. Squires, (Colo.) 12 Pac. Rep. 213.]

2 Davis v. Gale, 32 Cal. 26.

tor of a ditch above him.

Held, that he had not thereby lost his prior right to the water which still flowed down the stream after such sale, as against a third party who had appropriated the water below him subsequently to his original appropriation, but before his said sale and conveyance.1

§ 87. Wrongful diversion of springs.

In the case of Strait v. Brown' the supreme court of Nevada decided a point which may be of much practical importance. Although no distinction, in general, exists between waters running under the surface in defined channels, and those running in such channels upon the surface; and although water percolating through the ground below the surface is not governed by the same rules which pertain to running streams,—still, subsequent appropriators cannot, as against the prior appropriator of the same stream, lawfully acquire rights to the waters of the springs which constitute the source of such stream, simply because the means through which the waters are conveyed from the springs to the stream are subterranean, and not well understood nor defined. In other words, the subsequent appropriators on a stream cannot cut off and destroy or impair the rights of the prior appropriators by tapping the very springs themselves which constitute the sources of the stream, under color of a right to reach subterranean and percolating waters.

§ 88. General doctrine of abandonment.

Many of the cases heretofore cited, and several of the rules formulated in the foregoing sections, recognize the fact that

1 McDonald v. Askew, 29 Cal. 200. 216 Nev. 317.

3 For further special applications, see Nevada W. Co. v. Powell, 34 Cal. 109; Reynolds v. Hosmer, 51

Cal. 205. The particular facts and rulings in these cases have been sufficiently described under previous sections.

there may be an abandonment of the exclusive right to divert and use water acquired by or resulting from a prior appropriation; that such an abandonment may be made either after the prior appropriation has become perfect and complete, and the right under it vested, or while it is yet imperfect and incomplete, and the right under it remains inchoate; and, finally, that an abandonment may be express and immediate, by the intentional act of the appropriator, or may be implied from his neglect, failure to use due diligence in the construction of his works, non-user of them after completion, and the like. The general doctrine concerning the effect of such an abandonment, at whatever time or in whatever manner made, is well settled. The prior appropriator thereby loses all of his exclusive rights to take or use the water which he had acquired, or might have acquired, by his appropriation; and he cannot, after an abandonment, reassert his original right to the same, or the same amount of water, as against a second or other subsequent claimant who has taken proper steps to effect an appropriation thereof. If there has been no subsequent appropriation of the water thus abandoned, by another party, the prior appropriator may, of course, regain his former right, but this can only be done by his properly commencing and completing de novo the requisite steps in order to effect an appropriation, as heretofore described. He is in exactly the same situation as though he had hitherto made no attempt to appropriate the water.1

§ 89.

Methods of abandonment.

The methods in which an abandonment may be accomplished are various. Since the right held by the appropriator is an in

1 Davis v. Gale, 32 Cal. 26; Bark ley v. Tieleke, 2 Mont. 59; and see cases cited ante, concerning the mode of making an appropriation,

due diligence in completing the works, etc.; and concerning the discharge of water into the stream without intent of "recapture."

terest in land, an incorporeal hereditament, it can only be transferred, as has already been shown, by an instrument in writing sufficient to convey real estate. It follows that a mere verbal sale and transfer of his water-right by a prior appropriator operates ipso facto as an abandonment thereof. Such act shows an unequivocal intent on the part of the appropriator to give up and relinquish all of his interest, and, as it does not effect any transfer thereof to the attempted assignee or vendee, the only possible result is an immediate and complete abandonment. The same result follows from an attempted transfer of the waterright by means of an imperfect deed or instrument of conveyance. Returning the water, which has been diverted back into the natural channel of the stream without the intent of "recapturing". it, would be an express abandonment of all further rights to the use of such water; and the absence of any intent to "recapture" would generally be inferred, it seems, unless the returning of the water, after its first diversion, was made for the purpose of using the natural channel as a part of the appropriator's ditch or canal. Again, an abandonment may be inferred from a neglect to use the water for an unreasonably long time, especially if the special purposes of its original appropriation had been fully accomplished. Thus, in an important case already quoted, the court, after saying that the prior appropriator of water for a particular mine may, when he has worked out and abandoned said mine, extend his ditch and use the water at other points, without losing his priority, further held that, where

3

1 Smith v. O'Hara, 43 Cal. 371. 2 Barkley v. Tieleke, 2 Mont. 59. In both these instances, as has already been shown, no interest passes to the transferees; they do not succeed to any priority held by their assignor; their rights of priority date only from the time of their own possession and user.

3 Woolman v. Garringer, 1 Mont. 535; Davis v. Gale, 32 Cal. 26; Butte Canal Co. v. Vaughn, 11 Cal. 143. [A party cannot reclaim water that he has used and then allowed to pass from his control. Eddy v. Simpson, 3 Cal. 249; and see Schulz v. Sweeny, (Nev.) 11 Pac. Rep. 253.]