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.*

3

§ 73. Same; action for unlawful diversion.

[In order to be entitled to maintain an action for damages for the unlawful diversion of a water-course, or a bill in equity to restrain the continued or threatened diversion thereof, it is not necessary that the plaintiff should be the absolute owner of the land which is injured by the illegal

1 McDonald v. Bear River, etc., Co., 13 Cal. 220.

2 Weaver v. Eureka Lake Co., 15 Cal. 271.

3 Phoenix W. Co. v. Fletcher, 23 Cal. 481; Natoma W. & M. Co. v. McCoy, 23 Cal. 490. In Carron v. Wood, 10 Mont. 500, 26 Pac. Rep. 388, it was held that defendants

were liable for actual injury to plaintiff by their diversion of the water previously appropriated by him, though they might not have used the water continuously, and though they might have used it only for a short time.

4 Hoffman v. Stone, 7 Cal. 46.

acts of the defendant. Possession of land under a lease for years, for example, is sufficient to enable the tenant to bring such an action, or to maintain a bill for a perpetual injunction to restrain the diversion of water which is necessary to the enjoyment of the land, though, in the latter case, the injunction would necessarily end with the estate.1 So where a city, with the consent of the original appropriator, takes control of the waters of a certain stream, and distributes them to the inhabitants of the city, the right to exercise such control vests in the city, and it is authorized to maintain a suit to enjoin an individual from diverting the waters to his own use.2 And in California, where the statute makes a certificate of purchase of lands, issued under the laws of the United States, primary evidence of title in the holder, it is held that a receipt for the purchase-money, issued by a receiver of a United States land-office to an occupant of public lands bordering on a stream, is sufficient prima facie evidence of title in the latter to enable him to maintain an action to enjoin an upper riparian proprietor from unlawfully diverting the waters of the stream.3 The owners in severalty of different tracts of land may join in a bill for injunction to restrain the diversion of the waters of a stream along the banks of which their lands are located, and in which they have riparian rights and rights acquired by appropriation. But it seems

that persons so situated cannot unite in an action for damages against one who, at a point above their lands, has wrongfully diverted the waters of the stream, as they have no common interest in the damages, and there is no legal

'Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 17 Pac. Rep. 535; Heilbron v. Kings River & F. C. Co., 76 Cal. 11, 17 Pac. Rep. 933; Crook v. Hewitt, (Wash.) 31 Pac. Rep. 28.

LAW W. R.-9

2 City of Springville v. Fullmer, (Utah) 27 Pac. Rep. 577.

3 Conkling v. Pacific Imp. Co., 87 Cal. 296, 25 Pac. Rep. 399.

4 Churchill v. Lauer, 84 Cal. 233, 24 Pac. Rep. 107.

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basis on which they can be apportioned between them.1 The plaintiff in an action of this character also has the privilege of joining as defendants all persons whose unlawful acts contribute to the deprivation or diminution of his water supply on which he bases his action.2 And in Colorado it is said that a person who, by priority of appropriation, acquires the better right to the use of water from a natural stream, may maintain an action jointly against all parties junior in right to himself, whenever their acts, either joint or several, substantially interfere with such better right.3

The pleadings, in actions of the kind now under consideration, must of course be governed by the ordinary rules. Thus, for instance, it is held that the gravamen of the action is the diversion of the water, and the fact that this diversion is accomplished by several different means is not important enough to require several different counts in the complaint. If the plaintiff claims a superior right by appropriation, the complaint must set forth, with sufficient clearness and fullness, the fact of appropriation, the purpose for which the appropriation was made, and the amount of water necessary to effect such purpose.5 The claim of interest in the waters which the defendant is supposed to set up should not be alleged by the plaintiff merely on information and belief; but though the complaint may be imperfect in this respect, it will not be open to a general demurrer if it also alleges facts showing a wrongful diversion by the defendant and a threatened continuance thereof.6

Foreman v. Boyle, 88 Cal. 290, 26 Pac. Rep. 94.

2 Hulsman v. Todd, (Cal.) 31 Pac. Rep. 39.

Saint v. Guerrerio, (Colo.) 30 Pac. Rep. 235.

Gage v. Tuolumne Water Co., 14 Cal. 25.

5 Salazar v. Smart, (Mont.) 30 Pac. Rep. 676.

6 Hulsman v. Todd, (Cal.) 31 Pac. Rep. 39.

In an action for the unlawful diversion of water from a stream running through plaintiff's land, it is proper to exclude evidence of diversions by persons other than the defendant, at least when it does not appear whether such diversions were lawful or were made with plaintiff's consent.1 But it appears that such evidence of other diversions may be admissible merely on the issue as to the amount of damages.2 The gist of the action being the diminution in the flow of the water to plaintiff's land, or through his ditch, it is of course competent for him to show that the acts of the defendant appreciably diminished the volume of water in the stream. And in an action to establish a water right, a written declaration of the amount of water appropriated by the respective parties, which was duly verified and filed for record, may be received in evidence to prove their intention as to the amount of water each was to have under the appropriation, though the statute does not require such declarations to be filed. In regard to the damages to be recovered, it is ruled that the issue should not be limited to the interference with the plaintiff's present use of his property, and the jury should be instructed that the plaintiff's right to recover nominal damages does not depend upon his showing any actual or perceptible injury, but solely upon the question whether the defendant has diverted water so as to reduce materially the volume of water that would otherwise flow to or by plaintiff's land. It is held that the owner of land through which flows a stream of water suitable for a mill-site, but

1 Heilbron v. Kings River & F. C. Co., 76 Cal. 11, 17 Pac. Rep. 933; Lakeside Ditch Co. v. Crane, 80 Cal. 181, 22 Pac. Rep. 76.

2 Gould v. Stafford, 77 Cal. 66, 18 Pac. Rep. 879.

3 Garwood v. New York Cent. R.

Co., 116 N. Y. 649, 22 N. E. Rep. 396.

+Sweetland v. Olsen, 11 Mont. 27, 27 Pac. Rep. 339.

5 New York Rubber Co. v. Rothery, (N. Y.) 30 N. E. Rep. 841.

on which there is no mill, may recover, from one who diverts the water, any actual injury he suffers therefrom in the enjoyment of his land, but cannot recover for the loss of water-power which he has neither used nor attempted to use.1]

§ 74. Same; action to quiet title.

[In California (and perhaps in some other states) the courts will take jurisdiction of an action to quiet title to a water-course or to the rights of appropriators therein. And it is held that there need not be an actual interference with the plaintiff's right to use the water in the stream before an action can be brought to quiet title to his rights as appropriator. The assertion of an adverse claim is sufficient. And in the case just cited it was also held that one who has appropriated all the water in a stream for purposes of irrigation may sue persons who afterwards acquire vacant land above the plaintiff's tract and divert a part of the stream to irrigate their crops, to quiet his title to the full flow of the stream. In an action to quiet title to the right to use certain water, where the complaint alleged a right to use the water and "also the right to divert from its natural channel, and to use for irrigating and domestic purposes, all the waters" of the stream, it was held that the words quoted were mere surplusage, and did not vitiate the complaint.3]

§ 75. Equitable jurisdiction.

[It was stated in the preceding section that, where the unlawful diversion is continuing, a court of equity will interfere

'Clark v. Pennsylvania R. Co., (Pa.) 22 Atl. Rep. 989.

2 Peregoy v. Sellick, 79 Cal. 568, 21 Pac. Rep. 966.

3 Harris v. Harrison, 93 Cal. 676, 29 Pac. Rep. 325.