1

above the point of diversion by one having the primary right to the water for the purpose of irrigation, he may use it to drive his mill or generate electricity, etc., provided he return all the water after its use, undeteriorated in quality, to its natural channel in the stream before it reaches the prior appropriator's point of diversion; and further provided that in his use of the water the rights of the prior appropriator are in no manner impaired. But upon the other hand the diversion of a water course, or a part of it, by either a subsequent appropriator or a riparian proprietor, for manufacturing purposes, without returning it to the channel, is an unreasonable exercise of the right to use the waters of the stream. This is so, for as has been stated before, the question is, has the use and enjoyment of the water for the purpose for which the first appropriator claims it, been impaired by the acts of the subsequent appropriators?? If there has been no injury done to those who have a prior right to the waters, the result of his act would at most be damnum absque injuria. What diminution in quantity or what deterioration in quality will injuriously affect the use of the water by the prior appropriator, is a question of fact for the jury to consider in connection with all the circumstances of the case.3 However, where a ditch has been excavated from the bed of a stream by a prior appropriator, and water is being diverted through the same for irrigation or any useful purpose, a subsequent appropriator has no right to work a mining claim, or to use for any other purpose the water located above the head of the first appropriator's ditch, in such manner as to mingle mud and sediment with the water, or injure in any manner its value to the owner of the ditch for the purpose for which he first claims the use of the water.4

1 Weiss vs. Oregon I. & S. Co., 13 Oreg. 496; 11 Pac. Rep. 255.

2 Atchison vs. Peterson, 20 Wall. 507; Union Water Co. vs. Crary, 25 Cal. 504; Hill vs. Smith, 27 Cal. 476. See also Ante Section 175 and cases cited.

3 Phoenix Water Co. vs. Fletcher, 23 Cal. 483; Hill vs. Smith, 27 Cal. 476; Hill vs. King, 8 Cal. 336.

4 Hill vs. Smith, 27 Cal. 476; 8 Saw'y. 286; Woodruff vs. North Bloomfield G. M. Co., 8 Saw'y. 286; 9 Saw'y. 141; 18 Feb. Rep. 801.

$182. Subsequent Appropriation Before the Works of the First Appropriator Are Completed.-While the prior claimant's dam, canal or other works are in the process of construction or so much out of repair that they are not available for the purpose designed, and until they are in a condition to appropriate the water, the appropriation and use of the water by others is not an injury to him, and such use affords him no relief either legal or equitable;1 provided, the prior claimant has the use of so much water as is necessary to preserve his flume and other works from injury while in the process of construction.2

Upon this subject Mr. Chief Justice Sawyer, of the Supreme Court of California, in the case of Nevada County and Sacramento Canal Co. vs. Kidd,3 said: "A party may to-day take up a site for a dam and canal, and claim the waters of a river to be diverted at that point, and immediately commence work with a view of appropriating the water to his use for mining purposes, and yet, although laboring with all diligence, be unable actually to use the water for any purpose for years to come. Until he can use it another party may divert the whole water and use it; provided, he can do so without injury to the plaintiff's dam or canal, or the progress of his work, and there would be no injury to the plaintiff's water right, and no right of action to establish the water right or recover the water. There is, in fact as yet, no present water right to be affected. The party has merely acquired the possession and site for his dam and canals, and a right by diligently pursuing his object to acquire a future right to the possession of the water, which, when acquired, shall, for the purpose of priority and redressing any injuries that may thereafter accrue, date by relation from the first act in selecting the location and making the claim. But while pursuing his work and constructing his dam and canal, with a view to the future appropriation of the water and before any present water right capable of injury by diver

1 Bear River Co. vs. Boles, 24 Cal. 359; Brown vs. Smith, 10 Cal. 508; N. C. & S. C. Co. vs. Kidd, 37 Cal. 282; Harvey vs. Chilton, 11 Cal.

114; Union Water Co. vs. Crary, 25 Cal. 504.

2 Weaver vs. Conger, to Cal. 233; 6 Cal. 548.

337 Cal. 282, 309.

sion or use of others has been acquired, his dam and canal may be injured by trespassers or taken from him, and he be obstructed in his proceedings to acquire a right to the waters themselves, and he may have a cause of action on that ground. But this is necessarily a different thing and a different cause of action from an injury to his right to the water itself by diverting it from him. The possession of the unfinished dam and canal, or of the site, is not the possession and enjoyment of the water, but merely the possession of the means of acquiring, by the exercise of due diligence, a right to the water in future. This is the doctrine of this Court, as established by a long series of decisions. The right to the water or water right, as it is commonly called, is only acquired by an actual appropriation and use of the water. The property is not in the corpus of the water, but is only in the use."

§ 183. Distribution of Increase in Volume of Stream.Another important question arises as to the relations of those who claim the water by appropriation when the volume of the stream from whence they take is increased by natural or artificial means after the respective appropriations are made. And the authorities upon the subject hold that if several parties have acquired rights to the use of the water in a stream and the volume of that stream is increased at a place higher up than the heads of all their ditches from some natural cause it belongs to the several appropriators respectively, 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 and use of the additional water.1 So also, if the water from an artificial source was turned into the natural channel of the stream without any intention to recapture it on the part of parties who formerly owned it, it also becomes publici juris, to all intents a part of the natural waters of the stream into which it emptied, and the rights of the several appropriators remain relatively the same as before and are not differently affected than they would have been had the increase of water been due to some natural cause.2

1 Davis vs. Gale, 32 Cal. 26; Drew vs. Hicks, 35 Pac. Rep. 563.

2 Ibid. See Post Chapter VIII. Section 259.

§ 184. Doctrine of Relation as Between Appropriators.As between parties who claim the waters of a stream by merely its appropriation the doctrine of relation is often a very important subject in determining the priority of the claimants. The general doctrine upon this subject has been touched upon in a former chapter, but we will now discuss the principles of the same that apply to the subject at hand. As was shown in the sections cited, an appropriation does not become completed until the water is finally diverted and applied to some beneficial use or purpose, whether it was the one for which it was appropriated or not. If the first person attempting to appropriate water from a stream properly gives a notice and follows it up within a reasonable time by the work of constructing the dam, ditch, reservoir, or other necessary instrumentalities for the diversion and appropriation of the water to the purpose intended; and the work upon these means of diversion is prosecuted with all due and reasonable diligence until they are finally completed, and the water actually diverted and applied, then the person will acquire an exclusive right to the use of the water by the perfected appropriation, and his right will relate back as against all subsequent appropriators to the time of giving the notice.2 The law allows a reasonable time for finishing the work and completing the appropriation.3 If, however, on the other hand, there was unreasonable delay between the time of the giving of notice and the commencement of the work, and the work was not prosecuted to completion with due and reasonable diligence, or in other words, if there was unreasonable delay in its prosecution and the rights of a subsequent appropriator have in the meantime intervened, based upon a strict compliance of the law and all

1 Ante Chapter VI. Sections 168, 169, and authorities cited.

2 Kelly vs. Natoma Water Co., 6 Cal. 105; Osgood vs. El Dorado W. Co., 56 Cal. 571.

3 Maeris vs. Bicknell, 7 Cal. 261; Kimball vs. Gearhart, 12 Cal. 27; King vs. Edwards, I Mont. 235; Osgood vs. W. & M. Co., 56 Cal. 511; Woolman vs. Garringer, I

Mont. 535; Ophir Mining Co. vs. Carpenter, 4 Nev. 534; Atchison vs. Peterson, I Mont. 561; Irwin vs. Strat, 18 Nev. 436; N. C. & S. C. Co. vs. Kidd, 37 Cal. 282; Sieber vs. Frink, 7 Colo. 148; Wheeler vs. North Colo. Ir. Co., 10 Colo. 582; Columbia M. Co. vs. Holter, I Mont. 296.

due diligence, then the right of the first to use the water dates only from the time when his appropriation was perfected, and he becomes an appropriator subsequent and subject to the rights of the party coming last-the position of the two being reversed.1

II. Appropriation as Against a Congressional Grant of the Government.

§ 185. Appropriation as Against a Congressional Grant.In General.-A land grant as has been seen,2 is the technical term used in the United States for a grant by Congress of a portion of the public lands of the United States. The grantee is, of course, the party receiving the land, and it may be a person, corporation, State or Territory. As between. persons who claim the waters of streams or lakes by the appropriation of said waters while they were upon the public domain of the United States, and the subsequent grantee of the Government of a tract of land through or adjoining which the waters ran, the appropriator, being first in time, has the exclusive right to use the waters to the extent of his appropriation, and the grantee takes the land subject to such appropri

1 Ibid. Ophir S. M. Co. vs. Carpenter, 4 Nev. 534; Irvine vs. Strait, 18 Nev. 436; Keeney vs. Carillo, 2 N. M. 480; Meggerle vs. Ashe, 33 Cal. 74; Smith vs. Athern, 34 Cal. 504; Daniels vs. Landsdale, 43 Cal. 41; Landsdale vs. Daniels, 100 U. S. 118.

As to what is due and reasonable diligence see Chapter VI. Sections 160, 161.

See Part Second for Statutory Enactments upon the subject of Relation.

Relation. Where a canal company at the end of two years sold and conveyed its rights to another company which had, prior to such conveyance, constructed an irri

gating canal from a point on such river near the initial point of the proposed canal of the grantor, and running some distance parallel with the latter, but finally diverging several miles therefrom, the grantee acquired no rights by such conveyance, and its rights as an appropriator of the waters of the river do not relate back to the time when the grantor filed its statement and plat. Colo. Land & Water Co. vs. The Rocky Ford Canal, Reservoir, Land, Loan and Trust Co. (Colo. App.) 34 Pac. Rep. 580.

2 Ante Chapter V, Sections 137139.