that it was to be used at its mill for the purpose of power in operating machinery and in concentrating ores, and in pursuance of such notice conducted it to such mill, and, after there so using, returned it to the original channel of the stream from which it had been taken, and practically undiminished in quantity or deteriorated or changed in quality. The use made of it was purely usufructuary, and in no sense partaking of the nature of ownership in the water. The defendant, by its declarations and acts, in effect said to the world that the only use it had for the water was at the place and in the manner specified, and that, when so used, it had no further claim upon and abandoned it. Under such circumstances, there was neither direct nor implied notice that it would be used elsewhere or for other purposes by defendant. On the contrary, the public was justified in believing that defendant had made the only use thereof intended; that the same would continue; and that in the future it would be returned to the creek as it had been. Would it not follow, from such facts, that plaintiff, in claiming the water after its return to the creek, was fully justified? If justified in such claim, then protection thereof must follow. If the defendant's position is sustained by the law, it would follow that the prior appropriator would, in all cases, so absolutely control the water, to the extent of such appropriation, that no other person could thereafter attempt any permanent use of it, except at great risk of loss, even when such use would not damage the first appropriator. Suppose, in this case, the stream below defendant's mill were lined with ore-mills, all operated by the same water, as it passed from the wheels of one mill to the next below, and all by appropriations subsequent to defendant. Upon defendant's theory, all such mills may be closed, and utterly destroyed, whenever the latter con

cludes to modify its plans, and divert the water elsewhere."1]

§ 70. Remedies for interference with these rights. Such being the rights of the appropriator, any interference with the water of the stream itself, either above or below the point of his diversion, which hinders the full enjoyment of those rights, and any interference with the water while in the ditch, dam, or reservoir, or with these structures themselves, are injuries, for which suitable remedies may be obtained.

§ 71. Injuries to ditches.

A ditch may be injured, or even destroyed, by mining under it, thereby causing the surface of the soil over which the ditch runs to crack and settle. In such a case the mine-owners are liable to the proprietor of the ditch when the injury has been caused by their negligent or unskillful manner of conducting their mining operations; but whether they are liable for such an injury in the absence of all negligence and unskillfulness is more than doubtful. In the case cited, which was brought to restrain the mining operations under such circumstances, the court say that the plaintiff has a right to a ditch on the surface of the soil, and the defendants have a right to mine under the surface. These rights are not necessarily incompatible or conflicting. To the two parties so situated the maxim, qui prior est in tempore potior est in jure, does not apply, but rather the maxim, sic utere tuo ut alienum non lædas. How far a court of equity will relieve against such an injury, when no negligence or lack of skill is charged, the court expressly refrain from deciding, and suggest the following query: "Whether ditch property in the mining regions, although conceded to be real estate,

1 Last Chance Min. Co. v. Bunker Hill & S. Min. Co., 49 Fed. Rep. 430. 2 Clark v. Willett, 35 Cal. 534.

is to be regarded by courts of equity with the same measure of favor as that which is extended to land held by owners for its own sake, and not put to use for an ulterior object, is doubted, but not decided." It is abundantly settled that parties engaged in mining operations will be restrained from interfering with, or destroying or washing away, the ditch belonging to another person. The rights of a prior ditch-owner, as against persons engaged in mining, were fully established by the case of Gregory v. Nelson,' in which the following points were decided: If the complaint avers ownership by the plaintiff of a certain ditch, and that the ground over which it runs was vacant and unoccupied when it was dug, and the plaintiff has used it for years for mining purposes, and the answer does not deny these allegations, nor set up any prior right of defendants to said ground, nor any claim or right of defendants to destroy the ditch, the court should enjoin the defendants from destroying or interfering with the ditch upon the pleadings, regardless of the testimony. If a party owns a ditch, and the right of way. for the same, to conduct water for mining purposes, and has acquired such right by prior appropriation, the court, in an action brought to restrain the defendants from washing away the ground, should not allow the defendants to wash away the ditch, provided they build a flume or other aqueduct in place of the ditch of sufficient capacity to carry the water flowing through it. A court of equity had no power to make such a decree under these circumstances. A court should not license a trespass to ditch property in the mining regions, nor compel the owner to exchange his ditch for some other means of conveying the water flowing therein.

141 Cal. 278.

(125)

§ 72. Remedies for unlawful diversion.

Interference with the water to which the appropriator is entitled, whether flowing in the stream or running through his ditch, may either diminish its quantity or deteriorate its quality. These two kinds of injuries will be considered separately.

Of course the mere use of the water by another person, when its quantity is not thereby lessened nor its quality deteriorated, is no injury to a prior appropriator. If, therefore, A. owns a ditch, and has the right to divert the water of a certain stream by its means, and B. subsequently takes water from the same stream at a place above the head of A.'s ditch, and uses it for his own purposes, but returns it back undeteriorated in quality into the stream before it would reach A.'s ditch, or even into the upper part of the ditch itself at a point before A. has use for it, no injury is thereby done to A., and he has no cause of action against B. therefor. [And unless the prior appropriator is entitled to all the water of the stream, he cannot, in the nature of things, identify certain specific water as belonging to himself while the same remains in the natural channel, and so long as he is able to secure the full amount of water to which he is entitled, he will not be heard to complain that others are diverting its waters.2 At common law, it is the right of the riparian proprietor to have the whole volume of the stream flow in its natural channel by or through his land. And if those above him divert or consume the stream or any portion of it, (except for necessary and reasonable riparian uses,) he may have his action against them. Hence in such an action, it is not a proper or admissible defense that the plaintiff, notwithstanding the acts complained of, has enough water left for his uses and purposes, or would have enough if he properly

1 Yankee Jim's Union W. Co. v. Crary, 25 Cal. 504.

2 Saint y. Guerrerio, (Colo.) 30 Pac. Rep. 335.

controlled or secured it.1 But under the peculiar doctrine of appropriation, where the amount of water to which the claimant is entitled depends upon the amount actually diverted and actually put into use by him, it is conceived that this rule would not be applicable.] Whenever the rights of a prior appropriator exist, they are equally protected from interference and consequent injury by parties subsequently locating on the stream or using its water either above or below him.2 The diversion of the water of a stream is a private nuisance to the prior appropriator who is injured thereby, and he can maintain an action for such nuisance. For a past diversion the only remedy is a recovery of damages; but, when the diversion is continuing, equity will interfere by injunction.3 It seems the injured party may himself abate the nuisance. When A. attempts to erect a dam for the purpose of diverting the water of a stream at a certain place, and such diversion is unlawful as against B., who is a prior appropriator and has a dam at a lower point on the stream, it is held that B. may oust A. from possession, and may prevent the construction of his dam. Where a party has located on a stream, erected a mill, and appropriated the water

1 Gilzinger v. Saugerties Water Co., 21 N. Y. Supp. 121; Miller v. Windsor Water Co., (Pa.) 23 Atl. Rep. 1132.

2 Hil! v. King, 8 Cal. 337.

3 Tuolumne W. Co. v. Chapman, 8 Cal. 392; Parke v. Kilham, Id. 77. In brown v. Ashley, 16 Nev. 312, the court held that where the act complained of is committed under a claim of right, which, if allowed to continue for a certain length of time, would ripen into an adverse right, and deprive the plaintiff of is property, he is not only entitled to an action for the vindication of

his right, but also for its preservation. In actions, therefore, for the diversion of water, where there is a clear violation of an established right, and a threatened continuance of such violation, it is not necessary for the plaintiff to show actual damages, or even a present use of the water, in order to authorize a court to issue an injunc tion restraining the actual or threatened diversion, and to make it perpetual.

4 Butte T. M. Co. v. Morgan, 19 Cal. 609.