This court has never departed from the doctrine that running water, so long as it continues to flow in its natural course, is not and can not be made the subject of private ownership. A right may be acquired to its use, which will be regarded and protected as property; but it has been distinctly declared, in several cases, that this right carries with it no specific property in the water itself. We are not called upon to determine the character of the property which the owner of a ditch has in the water actually diverted by and flowing in his ditch. With reference to such water, his power of control and right of enjoyment are exclusive and absolute, and it is a matter of little practical importance whether, in a strict legal sense, it be or be not private property. In regard to the water of the stream, his rights, like those of a riparian owner, are strictly usufructuary, and the rules of law by which they are governed are perfectly well settled.

It is contended that the principle embodied in the instruction is in direct conflict with this doctrine, and that it can only be maintained upon the theory of a private ownership in the water itself. This position is clearly untenable. If the government, which in this instance is the riparian proprietor, had granted to the defendants the right to divert from the creek a given quantity of water, without restriction as to the place of diversion, it is clear that the right could be exercised at any point on the stream, though the effect of the grant would not have been to convey any property in the corpus of the water, for no such property is vested in the government. It is obviously immaterial whether the right was acquired under an express grant, or by prescription, or rests in the parol license, or the presumed consent of the proprietor. The difference relates to the mode of determining the existence and extent of the right, and not to the manner of its exercise and enjoyment. Angell, in his work on Water Courses, in treating of easements acquired by prescription, says: "The extent of the presumed right is determined by the user, on which is founded the presumed grant, the right granted being commensurate with the right enjoyed." (Ang. on Water Courses, Sec. 224.) But he also says that "although the extent of the right is to be measured and regulated by the enjoyment upon which the right is founded, the

party is yet allowed freedom in the manner of exercising it." (Id., Sec. 226.) "In this country, the doctrine is well settled," says the same author, "that where a right has been acquired by virtue of twenty years enjoyment to use a certain quantity of water, a change in the mode and objects of use is justifiable; and here, as in England, the only restriction is, that the alterations made from time to time shall not be injurious to those whose interests are involved." (Id., Sec. 227.) "All that the law requires is, that the mode or manner of using the water should not have been materially varied, to the prejudice of others." (Per Chancellor WALWORTH, in Belknap v. Trimble, 3 Paige Ch. 605.) The case of Whittier v. Cocheco Manf. Co., 9 N. H. 454, is directly in point. It was there decided that a change may be made in the place, as well as in the mode and objects of the use, if the quantity of water used is not increased, and the change is not to the prejudice of others. It was held that a party who had acquired by prescription a right to take a certain quantity of water at a particular dam, might open his gates and draw that quantity, without using it there, in order to use it at other works below on the same stream. These authorities show conclusively that in all cases the effect of the change upon the rights of others is the controlling consideration, and that in the absence of injurious consequences to others, any change which the party chooses to make is legal and proper. It follows that in this case the law was correctly given by the court, unless the rights of the parties are distinguishable from the class of rights to which these authorities refer, and the same rules and principles are not applicable. Upon this subject it is only necessary to consider that none of the rights involved in this controversy are founded upon a legal title, and that the safety and security of the parties require that the rights of each, as fixed by the priority and extent of their respective appropriations, should be regarded as perfect and absolute as if they had been acquired by prescription, or were held under an express grant from the riparian owner. This is the only reasonable rule which can be adopted in cases of this character; and it is the more reasonable, as it enables us to test the rights of parties by certain well settled principles of law, instead of relying upon our own unaided reason and judgment.

The next most important question in the case, and the only additional one which we propose to consider, relates to the effect of the verdict. It is contended that under the issues. presented by the pleadings, the effect of the verdict is to establish the original capacity of the plaintiffs' Deer Creek and Coyote ditches at one hundred inches of water, and to limit the right of diversion through each of those ditches to that quantity. The evidence shows very clearly that their capacity was much greater, and if the effect of the verdict were as contended, it would be a great hardship to the plaintiffs to permit it to stand. But we think that such is not its legal effect, and even if it were, we do not see upon what principle we could disturb it. There were several separate and distinct defenses, each of which was sufficient to defeat the action. These defenses were submitted to the jury, together with the evidence in support of each, and it is impossible for us to determine upon what particular issues the verdict was found. Nor is it necessary that we should do so, for if it be right as to one, it can not be set aside, though wrong, as to all the oth"If there be two issues," says WASHINGTON, J., in Lonsdale v. Brown, 4 Wash. C. C. 148, "or issues on two counts, and the verdict be not contrary to evidence as to one of them, the court will not grant a new trial, though it be contrary to evidence as to the other; for, since the verdict is right in part, the court will not set it aside." (See also Grah. & Wat. on New Trials, 1339; 1 Barnes, 9, 317, 333; and 9 Bac. Ab. 600, Bouv. ed.)

ers.

We think this verdict can not in any event be disturbed, but we are of opinion that its legal effect is different from that attributed to it by the plaintiffs. The rule is, that a verdict found on any fact or title distinctly put in issue, is conclusive in another action between the same parties or their privies, in respect of the same fact or title: 2 Wheat. Selw. 1356; Outram v. Morewood, 3 East, 346; Vooght v. Winch, 3 Barn. & Ald. 662. It is not sufficient that the particular fact or title is put in issue. It must be tried by the jury, and constitute the basis and foundation of the verdict. It must be relevant and material, and unless specially found must have been necessarily passed upon by the jury: Burt v. Sternburgh, 4 Cow. 559; Gardner v. Buckbee, 3 Id. 120. There is noth

ing in this case showing that the verdict turned upon the question of the capacity of the plaintiffs' ditches, and it is a reasonable inference from the evidence, that the issue upon that point was entirely disregarded. It was not necessarily considered, and as the verdict is general, its effect is limited to such issues as necessarily controlled the action of the jury. Upon the question of the capacity of these ditches the jury could have found for the plaintiffs, and still justly and properly concluded that they were not entitled to damages. To hold that upon such a question the verdict is conclusive of the rights of the parties, would, we think, be a plain perversion of the law.

The view we have taken of the case renders it unnecessary to consider any other questions discussed in the briefs of counsel.

Judgment affirmed.

2

BUTTE T. M. COMPANY V. MORGAN. ET AL.

(19 California, 609. Supreme Court, 1862.)

Change of ditch head. A person who has appropriated a given quantity of water from a stream has not an absolute and unqualified right to change the point of diversion, but he may change it at pleasure provided the rights of intervening locators be not injuriously affected. Illegal diversion of water prevented by use of force. The plaintiff attempted to divert water from a stream at a point above defendants' dam and the defendants ejected the plaintiff from the premises: Held, that as the diversion would have been illegal, the defendants adopted a legitimate mode of averting the injury.

Appeal from the Fifteenth District.

The findings of the court below, with the conclusions reached, are as follows:

"In the spring of 1853, Morrow & Co. erected a dam upon 'Saw Mill ravine,' and dug a ditch, by which they appropriated and used thirty inches of the water of the ravine. The

Kidd v. Laird, 4 M. R. 571; Sieber v. Frink, 7 Colo.-. 2 Stiles v. Laird, 5 Cal. 120; Post NUISANCE.

right of thirty inches has been transferred to Gregory & Co., and the point of tapping the stream has been changed one mile further up, and near the source. It is now known as the Gregory ditch. In May, 1853, (after the water of the Gregory ditch had been appropriated) Lehman & Co. posted notices on Saw Mill ravine, claiming all the surplus water of the ravine, and in November and December of that year erected their dam some distance below the dam of Gregory & Co., and in January, 1854, commenced the use of water from the ravine. Their ditch, as dug at that time, was of the capacity of one hundred and fifty inches; but the flume along the line of the ditch was only sixty inches capacity, and there is no showing that the capacity of the flume has ever been increased. This right has been transferred to plaintiffs, and is known as the Butte Table Mountain ditch.

"In November, 1855, Lewis & Co. erected a dam upon the ravine, about six hundred yards above the dam of the Butte Table Mountain ditch, claiming the surplus water of the ravine whatever the same might be for the purpose of working mining claims owned by themselves and others along the banks of the Saw Mill ravine, and have used the waters of the ravine since that time for the purpose appropriated, discharging it back into the ravine above the dam of the Butte Table Mountain company. This right has been transferred to the defendants. The defendants have, since the first diversion of the water in the fall of 1855, changed the course of their diversion from the east to the west bank of the ravine, tapping the stream at about the same point, and returning the water back to the ravine still above the head of the Butte Table Mountain Company dam.

"In the fall of 1858, the plaintiffs erected a dam on the ravine some distance above the head of their old dam, and below where defendants discharged the water from their ditch back into the ravine, and diverted about eight or ten inches of water by means of the dam and through a tunnel claim of plaintiffs. This water was used as a motive power in propelling some machinery for the ventilation of plaintiff's tunnel.

"The water used by defendants, with the gravel and sediment from their mining claims, is turned into the ravine above this small dam of plaintiffs. The water diverted by