IV. SUCCESSIVE APPROPRIATORS.

§ 89. Rights of subsequent appropriator.

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 a propriation, the relations of the subsequent appropriators, and especially the limitations or restrictions upon their rights growing out of the superior claims of the prior appropriator, 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.

$ 90. Successive appropriations.

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

1See ante, § 55.

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. 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?"? 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

1 Stein Canal Co. v. Kern Island, etc., Co., 53 Cal. 563; Broder v. Natoma W. Co., 50 Cal. 621; Smith v. O'Hara, 43 Cal. 371; Higgins v. Barker, 42 Cal. 233; Nevada W. Co. v. Powell, 34 Cal. 109; Davis v. Gale, 32 Cal. 26; Hill v. Smith, 27 Cal. 476; American Co. v. Bradford, Id. 361; McKinney v. Smith, 21 Cal. 374; Ortman v. Dixon, 13

Cal. 33; Butte C. Co. v. Vaughn, 11 Cal. 143; Kelly v. Natoma W. Co., 6 Cal. 105; Lobdell v. Simpson, 2 Nev. 274; Proctor v. Jennings, 6 Nev. 83; Barnes v. Sabron. 10 Nev. 217.

2 Hill v. Smith, 27 Cal. 476.

3 American Co. v. Bradford, 27 Cal. 361.

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. Simpson3 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: "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." [An injunction will not be granted to restrain one from taking and appropriating water from a creek, for irrigating purposes, on a bill by a prior appropriator of the waters of the creek, below defendant, where it appears that there was enough water for both parties.5 So where one is adjudged the owner of all of certain water and water rights, except an amount "equal to a constant flow of 23 inches of water, measured under a four-inch pressure," adjudged to belong to defendants, the latter cannot use more than such 2 inches at any time, though they afterwards seek to compensate for such excessive use by refraining from using any water whatever. Again, where it is adjudged that plaintiffs are entitled to a certain amount of water from a stream, and that defendants are entitled to the

balance, and it appears that plaintiffs have always used the water by means of a defective flume, the court may direct them to carry the water to which they are entitled by flume and pipe, so that the balance may not be wasted.1 But it has been held that where the plaintiff constructs and maintains a dam in a stream on public lands, for the purpose of supplying a canal with water to be used for beneficial purposes, he acquires a possessory interest in the dam, the pond formed by it, and the land under the pond, and other persons may be enjoined from extending a canal into the pond, even though their intention was to take only the surplus water after plaintiff's canal had taken its supply.2]

§ 91. Periodical appropriations.

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.3 This rule is stated in the

1 Barrows v. Fox, (Cal.) 30 Pac. Rep. 768.

2 Natoma Water Co. v. Hancock, (Cal.) 31 Pac. Rep. 112.

3 Smith v. O'Hara, 43 Cal. 371;

Barnes v. Sabron, 10 Nev. 217; and see Lytle Creek W. Co. v. Perdew, 2 Pac. Rep. 732. [Where a landowner appropriates and uses all the water of a stream, except dur

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."

§ 92. Conditions under which subsequent appropriation may be effected.

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 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 -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 en

ing extraordinary high water or freshets, he cannot obtain an injunction against appropriation by

another of the surplus water during freshets. Edgar v. Stevenson, 70 Cal. 286, 11 Pac. Rep. 704.]