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It may be conveyed absolutely, or lost or acquired, either wholly or in part, by an adverse user, suficiently long, exclusive, and notorious to furnish adequate grounds for presumption of a grant.
§ 10. Diversion, when permissible.
It is also a right of the riparian owner, at common law, to have the stream flow in its natural channel without diversion. But this right extends no further than the boundaries of his own estate. He cannot complain of the mere fact of a diversion of the water-course, either above or below him, if, within the limits of his own property, it is allowed to follow its accustomed channel. Hence it is not unlawful to change the course of a stream within the limits of one's own land, if the stream is returned to its natural channel before leaving the land, and its flow is not materially diminished.?
§ 11. Exceptions to common-law rule against ap
propriation. There are some cases, even at common law, where a prior appropriation will give the occupant superior privileges over the other proprietors on the same stream. Thus, in a Massachusetts decision, it is held that the riparian proprietor, who first erects his dam for reasonable mill purposes, has a right to maintain it as against proprietors above and below, although by so doing the others are prevented from placing dams and mills on their land. In such case, prior occupancy gives a prior right
Easem. 319; Gould, Waters, 204; 28 Cal. 340; Hale v. McLea, 53 Cal. Johnson v. Jordan, 2 Metc. 239: 578; Hanson v. McCue, 42 Cal. 303. Cary v. Daniels, 5 Metc. 238; Tyler See. also, Wadsworth v. Tillotson, v. Wilkinson, 4 Mason, 397; Samp- 15 Conn. 366. son v. Hoddinott, 1 C. B.(N. S.) 590; Lux v. Haggin, (Cal.) 4 Pac. Hill v. Newman, 5 Cal. 445; Pope
Rep. 919. v. Kinman, 54 Cal. 3; Creighton v. 2 Pettibone v. Smith, 37 Micb.579; Evans, 53 Cal. 55; Ferrea v. Knipe. Norton v. Volentine, 14 Vt. 239.
to such use. In the case referred to, Shaw, C. J., said: “The usefulness of water for mill purposes depends as well on its fall as its volume. But the fall depends upon the grade of the land over which it runs. The descent may be rapid, in which case there may be fall enough for mill-sites at short distances; or the descent may be so gradual as only to admit of mills at considerable distances. In the latter case, the erection of a mill on one proprietor's land may raise and set the water back to such a distance as to prevent the proprietor above from having sufficient fall to erect a mill on his land. It seems to follow, as a necessary consequence from these principles, that in such case the proprietor who first erects his dam for such a purpose has a right to maintain it as against the proprietors above and below; and to this extent prior occupancy gives a prior title to such use. It is a profitable, beneficial, and reasonable use, and therefore one which he has a right to make. If it necessarily occupy so much of the fall as to prevent the proprietor above from placing a dam and mill on his land, it is damnum absque injuria. For the same reason the proprietor below cannot erect a dam in such a manner as to raise the water and obstruct the wheels of the first occupant. He had an equal right with the proprietor below to an equal use of the stream; he had made only a reasonable use of it; his appropriation to that extent, being justifiable and prior in time, necessarily prevents the proprietor below from raising the water, without interfering with a rightful use already made; and it is therefore not an injury to him. Such appears to be the nature and extent of the prior and exclusive right which one proprietor acquires by a prior reasonable appropriation of the use of the water in its fall; and it results, not from any originally superior legal right, but from a legitimate exercise of his own common right, the effect of which is, de facto, to supersede and prevent a like use by other proprietors originally having the same common right. It is, in
this respect, like the right in common, which any individual has, to use a highway. While one is reasonably exercising his own right, by a temporary occupation of a particular part of a street with his carriage or team, another cannot оссиру
same place at the same time."It is to be remarked, however, that the appropriation here sanctioned was not of the stream itself, —at least, not to its whole extent, -but only of its power to drive machinery. The other riparian owners would continue in the enjoyment of the water for all the purposes to which it could ordinarily be put, except this one. Hence this apparent departure from the doctrine of the common law could not be invoked in aid of one who should entirely divert the water-course, or appropriate its whole volume to his private uses. And it is proper to add that this rule has been repudiated in certain other states, or else conditioned upon a continuance of the appropriation for such a period of time as would be requisite to establish rights by prescription.']
1 Cary v. Daniels, 8 Metc. 466, 8. C. 41 Amer. Dec. 532.
And see Gould v. Boston Duck Co., 13 Gray, 451; Fuller v. Chicopee Manuf'g Co., 16 Gray, 44; Smith v. Agawain Canal Co., 2 Allen, 357; Pratt v. Lamson, Id. 288; Lowell v. Boston,
111 Mass. 465; Lincoln v. Chadbourne, 56 Me. 197; Miller v. Troost, 14 Minn. 363, (Gil. 282.)
2 See Parker v. Hotchkiss, 25 Conn. 321; Keeney Manuf'g Co. v. Union Manuf'g Co., 39 Conn. 576; Dumont v. Kellogg, 29 Mich. 420.
APPROPRIATION OF WATERS FLOWING THROUGH THE
I ORIGIN AND BASIS OF THE RIGHT TO APPROPRIATE.
& 12. Scope of the present chapter.
13. Early importance of mining interests.
19. Views of the United States supreme court.
24. Efficacy of miners' cu toms. II. APPROPRIATION AS AGAINST THE SUBSEQUENT GRANTEE OF THE
GOVERNMENT. $ 25. Title of subsequent grantee is subject to prior appropri
29. Public lands of the state.
§ 30. Appropriation confined to public lands.
31. Jurisdiction of state and United States distinguished.
32. Power of government to annex conditions to grants. IV. CONFLICTING CLAIMS BETWEEN SETTLERS AND APPROPRIATORA.
& 33. Converse of doctrine of appropriation.
34. When title from United States is perfected.
41. Review of the cases.
§ 42. Later decisions establishing doctrine of relation.
I. ORIGIN AND BASIS OF THE RIGHT TO APPROPRIATE.
§ 12. Scope of the present chapter.
Having stated the fundamental doctrines of the common law concerning the use of running streams and small inland lakes, and the rights of riparian owners, as established by the general consensus of English and American decisions, I shall proceed to examine, with more of detail, the variations from these doctrines which have been made by the courts or recognized by the legislation of the Pacific commonwealths. In this division of the subject it will be expedient to notice, in the first place, certain matters, connected with various conditions of fact, which may be regarded as settled, and subsequently to discuss those questions which are still open, and which admit of conflicting opinions, or involve, perhaps, a conflict of decision.
$ 13. Early importance of mining interests.
From the time of the discovery of gold in California the mining interests became, and for many years continued to be in that state, and still are in other Pacific states and territories, of paramount importance, to which agriculture, manufacturing, and all other industries were subordinated. The lands containing the minerals belonged almost entirely to the public domain of the United States. Vast numbers of immigrants poured over these mineral regions, settled down in every direction, appropriated parcels of the territory to their own use, and were pros. pecting and mining in every mode rendered possible by their own resources, under no municipal law, and with no restraint except that of superior physical force. “The world has probably never seen a similar spectacle,—that of extensive gold fields LAW W. R.-2