The

§ 236. Fouling water with refuse matter. special rights acquired by an appropriation of water, based upon the implied assent of those having the same equality of right,' when once they have attached, will be enforced and guarded by the courts, within the limits of the appropriation, although no new rights could be ingrafted on the original appropriation, for any purpose that would aggravate the previous disturbance, or sensibly impair the rights of subsequent appropriators. It is well settled that the right to discharge noxious waters which have been used and retained for the precipitation of minerals, like the right of diversion, may be acquired by appropriation.3

Water right is not lost by non-user, without an intent to abandon. Welch v. Garrett (Idaho), 51 Pac. Rep. 405.

1 Baxendale v. McMurray, L. R. 2 Ch. 790; McCullom v. Water Co., 54 Pa. St. 40; Sampson v. Burnside, 13 N. H. 264; Babcock v. Utter, 1 Keyes (N. Y.), 397; s. c. 32 How. 439.

2 Brown v. Best, 1 Wils. 174; Bealey v. Shaw, 6 East, 208; Wood v. Sutcliff, 2 Sim. (U. S.) 163; McCullom v. Water Co., supra.

3 Wright v. Williams, 1 M. & W. 77; Wait's Act. & Def. (Vol. 4), p. 428. "A proprietor of land over which a stream of water runs has as against a lower proprietor the use of only so much of the stream as will not materially diminish its quantity or corrupt its quality. His right is not to be measured by the necessities of his business (operating lead mines)." Wheatley v. Chrisman, 24 Pa. St. 298; M. M. D. 404. See Schumacher v. Shawhan, 67 S. W. 717. "As to the deterioration in the quality of the water by reason of being used for mining purposes before it reaches the ditch of the prior locator, it must be deemed damnum absque injuria." Bear River Co. v. N. Y. M. Co., 8 Cal. 327; M. M. D. 403. Any other rule would involve an absolute prohibition of the use of all the water of a stream above any ditch supplied by it, in order to preserve the quality of a small portion taken therefrom." Id. Flowing refuse of iron ore into stream so as to render it unfit for agricultural purposes is held actionable in Alabama. Drake v. Lady Ensley Coal Co., 14 So. Rep. 749; 24 L. R. A. 64. See also Elders v. Likens Valley Coal Co., 157 Pa. St. 490; 27 Atl. Rep. 545; Bailey v. Mill Creek Coal Co., 20 Pa. Super. Ct. 186 (Pa. 1902). "In an action for damages for polluting and obstructing a water-course, evidence offered by defendant that plaintiff could procure pure water from another source

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And the right to throw refuse matter from mines into a natural stream to be drained away may be asserted either by prescription or by custom. But in the use of the water, as in the construction of their ditches, miners are bound to exercise reasonable care to prevent injury to the rights and property of other appropriators along the same stream,2 and for injury resulting from wanton carelessness or gross negligence they could be made to respond in damages. The owner of a saw-mill upon a stream, the waters of which are used for mining purposes, under a prior appropriation, would not be permitted unnecessarily to throw sawdust into the stream; nor would an appropriator of the water for mining purposes be permitted to use it so that it would injure orchards and gardens along the stream, which were inclosed or planted before the water was appropriated.

should be rejected." Stevenson v. Ebervale Coal Co., 52 Atl. Rep. 201 (Pa. 1902).

1 Carlyon v. Loveling, 1 Hurl. & N. 784; s. c. 26 L. J. Exch. 251; 40 E. L. & Eq. 448; W. A. & D. (Vol. 4), p. 428.

2 Campbell v. Bear River &c. Co., 35 Cal. 679; Angell on Waters, 380, Sec. 336.

3 Tierney v. Miner's Ditch Co., 7 Cal. 335-339; Woolf v. St. L. &c. Co., 10 Cal. 541; Hoffman v. Water Co., 10 Id. 413; Everett v. Hydraulic Co., 23 Cal. 225.

"Ditch or reservoir owners

Water Co. v. Fletcher, 23 Cal. 481. are to the same extent liable for injury caused to adjacent lands by percolation of water through the soil, flooding of wells and cellars of a house. (See Fuller v. Chicopee Manf. Co., 16 Gray, 46; Wilson v. New Bedford, 108 Mass. 261; Pixley v. Clark, 35 N. Y. 520.) As to whether parties maintaining reservoirs upon their premises are bound to a stricter responsibility, see Rylands v. Fletcher, L. R. 1 Exch. 265." B. & W. L. C. 741.

5 Wilson v. Bear River &c. Co., 24 Cal. 367. Just how far a mining custom to let tailings run free down a gulch, without any hindrance, to the interference and injury of the mining operations and property of persons locating for mining purposes in the same gulch lower down, and after such custom or regulation has been established, see Lincoln v.

§ 237. Right to divert water.- The prior appropriator of water for mining purposes can extend his ditch at a certain point, and use the water to the extent of his appropriation, at any other point, for the same or a different purpose,1 provided he does not thereby injure the rights of prior appropriators on the same stream.2 And he also has the right by virtue of his appropriation, to enlarge his ditch at his pleasure, and if, in so doing, he does not thereby use more water than was first appropriated by him, others having water rights in the same stream are not in a position to complain,3 for the first appropriator has the right to work his mining claim as he chooses and to use the water for such purposes as may suit his own convenience, notwithstanding the rights of subsequent locators on the same stream. But as between ditch owners and miners using the waters of a stream for mining purposes, the law will not tolerate any injury by one to the prior rights of the other, for the very essence of the right is the priority of its exercise.5 The appropriator is bound, gen

Rodgers, 1 Mon. 217; Esmont v. Chew, 15 Cal. 137; Logan v. Driscoll, 19 Cal. 623.

1 Woolman v. Gorringer, 1 Mont. 535. "The prior appropriator of a stream of water for mining purposes has a right to have the water flow down above the point of his appropriation, without interruption or diminution in quantity.' Phoenix W. Co. v. Fletcher, 23 Cal. 482; M. M. D. 405. "The first appropriator of water for mining purposes is entitled to have the water flow, without material interruption, in its natural channel." Bear River Co. v. N. Y. Mining Co., 8 Cal. 327; Mokelumne Hill Co. v. Woodbury, 10 Cal. 185. "He is entitled to the water so undiminished in quantity as to leave sufficient to fill his canal or ditch as it existed at the time of subsequent appropriations of the stream above him." Id.; M. M. D. 405.

2 Hill v. Smith, 27 Cal. 476.

3 James v. Williams, 31 Cal. 211; Richardson v. Kier, 34 Cal. 63; White v. Todds Valley Water Co., 8 Cal. 443; Union Water Co. v. Crary, 25 Cal. 504.

4 Stone v. Bumpus, 46 Cal. 218.

5 Hill v. Smith, 27 Cal. 476.

erally, to a reasonable use of the waters under the circumstances, for the purposes for which it was appropriated, and he will not be permitted to wholly divert or obstruct the stream, whether for purposes of irrigation or otherwise.1 However, the miner is only bound to use ordinary care and diligence in the management of the water appropriated by him, and if, notwithstanding such care as a reasonably prudent person would have exercised, the water causes injury to the property or rights of miners further down the stream, the appropriator having control of the water would not in such case be liable for the injury caused.2

§ 238. Sale and transfer of water right. In some of the Western States the miner's right to appropriate running streams of water has been specially declared to be real property, by statute,3 capable of abandonment, the same

1 Barnes v. Sobray, 10 Nev. 207; Caruthers v. Pemberton, 1 M. F. 111; Anthony v. Lapham, 5 Pick. 175; Webb v. Portland M. Co., 3 Sumner, 189; Gerrish v. Newmarket M. Co., 10 Foster, 470; Canal Appraisers v. People, 17 Wend. 570; Davis v. Getchell, 50 Me. 602; Board of Trustees v. Haven, 11 Ill. 554; Moffat v. Brewer, 1 Green (Iowa), 348; B. & W. L. C. 746.

2 Campbell v. Bear River Co., 35 Cal. 679; Everett v. Hydraulic F. T. Co., 23 Cal. 225; Livingston v. Adams, 8 Cowen, 175; Gregory v. Nelson, 41 Cal. 289; Woolf v. St. L. &c. Co., 10 Cal. 541; Angell on Waters, 380, Sec. 336. If the party claiming the water right has not yet completed the construction of his dam or reservoir, since he is not in a condition to appropriate the water the use by other parties is no injury to him and he is not entitled to relief either legal or equitable. Nevada Water Co. v. Powell, 34 Cal. 109; N. C. & S. C. Co. v. Kidėl, 37 Cal. 282. But just what cases would be actionable and what not, must necessarily differ according to the extent and value of the property injured, the amount of damage done and other circumstances of a similar nature. Richardson v. Kier, 34 Cal. 63; Wilson v. New Bedford, 108 Mass. 261; Shearman & Redfield on Neg., § 557 et sub.; Copper King v. Wabash Min. Co., 114 Fed. Rep. 991 (U. S. C. C., Cal., 1902); Churchill v. Louie, 67 Pac. Rep. 1052.

3 See Civil Code Cal.; Statutes different States; Reed v. Spicer, 27 Cal. 57; Clark v. Willet, 35 Id. 534.

as the right of location of a mining claim,1 and subject also to sale and transfer, like any other species of realty.? A water right is not necessarily an appurtenance that would pass with a transfer of the land, nor would the fact that the water right, or the water used at a certain mining plant, be such a fact from which the court would presume that such right was appurtenant to the claim, but the burden of proving that the water ditch and water was appurtenant to the claim would devolve upon the party who affirmed it to be the fact, and such proof would have to be adduced, even in the face of the fact that a large portion of the water from the ditch was used upon the claim. But the rights of an appropriator of running water would not be affected by a transfer or diversion in the course of a stream, resulting from a sale and division of the land on which the same ran, and if the owner of land on which the stream was running should change its course by making an artificial ditch to drain off the water and then convey that portion of the land on which the natural channel was located to one person and that containing the artificial water-course to another, the rights of the appropriator would not be affected by such transfer, but the respective

1 Reed v. Spicer, supra; Clark v. Willet, supra; McDonald v. Bear River & A. W. & M. Co., 13 Cal. 223; Blanchard & Weeks Leading Cases on Mines, Minerals and Mining Water Rights, p. 751; Davis v. Butler, 6 Cal. 510; Richardson v. McNulty, 24 Cal. 339; Hoffman v. Stone, 7 Cal. 46; St. John v. Kidd, 26 Cal. 263; Ferris v. Cooney, 10 Cal. 181; Dougherty v. Creary, 30 Cal. 290; Moon v. Rollins, 36 Cal. 333; Smith v. Cushing, 41 Cal. 97; McLeran v. Benton, 43 Cal. 467.

2 McDonald v. Bear River & A. W. & M. Co., 13 Cal. 223; Heynemous v. Blake, 19 Cal. 579. "A water right is, under the law of Montana, 'such a species of realty' as to require for its transfer the same form and solemnity as the conveyance of other real estate.'" Barkley v. Tieleke, 2 Mont. 59. M. M. D. 409.

3 Quirk v. Folk, 47 Cal. 453.

4 Quirk v. Folk, supra; Blanchard & Weeks Lead. Cas. on Mines, Minerals and Water Rights, p. 755.