distribute the bounty of the government among the greatest number of persons, so as most rapidly to develop the hidden resources of this region, while at the same time, the prior substantial rights of individuals should be preserved. In the working of these mines, water is an essential element; therefore that system which will make the most of its use, without violating the rights of individuals, will be most in harmony with the end contemplated by the superior proprietor.

Keeping this position in view, we will proceed to examine the questions arising in this case. It has been held by this court, that the owners of a water-ditch were entitled to the exclusive use of the waters of the stream, as against all subsequent locators on the stream below the ditch. In the late case of Hill v. King and others, it was held that the ditch proprietor was equally entitled to the exclusive use of the water, pure and undiminished, as well against the subsequent locator above, as below, the ditch; and that the two cases were not distinguishable in any essential particular. In that case a petition for a rehearing was filed, and has not yet been disposed of. The question is still, therefore, an open one.

It would certainly seem, at first view, that there could be no distinction in the two cases. But is this true? When a party constructs a ditch, and diverts the waters of a stream before the rights of others have attached below, he only takes it from one unoccupied mining locality to another. In such case, there can, as a general rule, be no substantial injury done to the mining interest of the State, or to the rights of individuals. The water is taken to a locality where it is used; and after being so used, it finds its way to other mining localities, where it is again used. The effect of the diversion is not to diminish the number of times the water may be used. In the majority of cases, it is used as often, and upon the whole, as profitably, as if it had never been diverted, but had continued to flow down its natural channels. The general usefulness of the element is not impaired by the diversion. It may be very safely assumed, that as much good, if not more, is accomplished by the diversion, as could have been attained, had such diversion never occurred. In fact, we must, in reason, presume that the water is taken to richer

14 M. R. 533,

mining localities, where it is more needed, and therefore the diversion of the stream promotes this leading interest of the State. It was upon the principle that the leading interest of the superior proprietor was attained by these diversions, that the decisions of this court sustaining them, were predicated.

But for the sake of the argument, we will take the position to be true, that the owner of a ditch at any point upon a stream in the mineral region, has the exclusive right, as against all subsequent locators above his ditch, to the use of the water, undiminished in quantity, unadulterated in quality, and uninterrupted in flow. We will, then, endeavor to see how such a theory will operate in practice. And before we do this, we must concede that as a general rule the effect of a particular construction of a statute, or the application of a certain principle, can not be used against it except in cases of reasonable doubt. If the meaning of the statute be clear, or the application of the principle well settled, courts are not disposed to consider the consequences. The legislative power is responsible for them in such cases, and relief must be sought there. But in these mining cases we are virtually projecting a new system, and if ever the practical effects of a theory could be justly considered in any case, it is apprehended it could be legitimately done in this.

It is stated by a very intelligent witness in this case, that "as rapid a stream as Bear river would carry sediment a long way;" and it may be correctly said that about the same rapidity of current is found in all the mountain streams.

If, then, we lay down the doctrine as true, that the ditchowner is entitled to the water in as pure a state as it was at the time he constructed his ditch, the result must be that those locating above him can never use the water at all, even in cases where the upper end of the ditch taps the stream near the point where it leaves the mineral region. For as the streams are rapid, the sediment must, in greater or less quantities, come down to his ditch. The inevitable practical result must be, that the water can not be used so often, and the general usefulness of this element for mining purposes must be greatly impaired, and the leading intention of the superior proprietor be thus far defeated.

It would seem, therefore, that there is a greater difference between the two cases than would at first appear. But this difference is greater still, when we come to consider other cases that must arise. Suppose the ditch only takes from the stream a portion of the volume, say, for example, one tenth, the remaining portions are left to flow down the natural channel, and may or may not be used as they may or may not be needed below. But in such a case, what are those who afterward locate above, on the same stream, to do? If they use any portion of the water, it becomes charged with sediment that must mingle the whole volume of the stream, and the water, thus deteriorated, must flow to the ditch. And if the principle is sustained that the water must flow pure to the ditch, then the nine tenths can not be used above the ditch for min

ing purposes; and because the ditch-owner has taken away a portion only of the stream, must the use of the other nine tenths be lost to all?

After the most careful and anxious consideration of this most difficult subject, the following conclusions occur to me as the nearest practicable approach to a fair and equitable adjustment of this matter.

1. The ditch-owner is entitled to have the water flow, without material interruption, in its natural channel. This right would seem to be compatible in general with the fair use of the water above.

2. He is entitled to the water, so undiminished in quantity, as to leave sufficient to fill his ditch as it existed at the time the locations were made above. This right is essential to the protection of the ditch-owner. If we lay down the rule that' the subsequent locators above may so use the water as to diminish the quantity, it would be difficult to set any practical limits to such diminution, and the ditch-property might be rendered entirely worthless. As the water can not be absorbed or evaporated at once, the ditch-owner should be entitled to its exclusive use in such a case.

3. And as to the deterioration in quality, the injury should be considered as an injury without consequent damage.

For these reasons, I think the judgment of the court below should be reversed, and the cause remanded for further proceedings.

Reversed.

HILL V. KING ET AL.

(8 California, 337. Supreme Court, 1857.,

Subsequent locators above and below. The first appropriator of water should be protected in his rights, as well as against subsequent locators above as below him. He who has first diverted the waters of a stream and appropriated them to his own use is entitled to the exclusive enjoyment of the same, pure and undiminished. The use of the water by subsequent locators above him must be reasonable and the injury or diminution small or inconsiderable.

Appeal from the District Court of Placer County, Eleventh Judicial District.

The plaintiffs in this case were the owners of two waterditci.es leading the waters of Indian cañon to various mining localities that were constructed in 1852. In 1855, the defendants took possession of certain mining claims on Indian cañon, at a point about one mile above plaintiffs' dam, and commenced working them, by the sluicing process, and in so doing, washed down large quantities of mud, gravel, and sediment, into the bed of the cañon, which sediment, etc., was carried into plaintiffs' ditches by the water used by the defendants in sluicing, whereby the ditches of plaintiff's were filled up, and also plaintiffs' reservoirs, and the water rendered so thick and muddy that it was almost valueless for mining purposes. There was testimony on the part of the defense going to show that defendants had worked their claim in a reasonable manner, and had used water coming from another cañon. On the trial, plaintiff asked the court to instruct the jury as follows, which being refused, an exception was duly taken:

"That if plaintiff had constructed his ditches, and appropriated the waters of Indian cañon, and was using said water, for sale for mining purposes, and defendants subsequently located mining claims near the bank of said cañon, and above the head of plaintiffs' ditches, and in working said claims, they, the defendants, occasioned a material and essential injury to the waters of said cañon, so that their value

1 Compare Bear River Co. v. New York Co., 4 M. R. 526.

was materially and essentially impaired for the mining uses to which they were being put by plaintiff, such acts are sufficient to entitle the plaintiff to his action. And although defendants may have worked their claims in the most practicable and reasonable manner, and may have done no more damage than it was necessary to do in order to work their claims, yet the plaintiff was entitled to recover from them to the extent of the damage done by them."

Judgment for defendants. Plaintiff moved for a new trial, which being denied, he appealed.

This case was decided at the July term of this court, but was retained on a petition for a rehearing.

HALE & HILLYER, for appellant.

CHARLES A. TUTTLE, for respondents.

At the July term, MURRAY, C. J., delivered the opinion of the court, BURNETT, J., concurring.

The only question involved in this case is, whether the proprietors of a water-ditch can maintain an action against the subsequent locators of mining claims for a deterioration or diminution of water so appropriated.

It has been repeatedly held by this court, that as against those locating below the head of a ditch or point where the water is diverted from the stream, the owners of such ditch, if their appropriation of the water was prior to the location of mining or other claims, had a superior right, and might protect it by the ordinary remedies known to the law. The only difference between this case and those heretofore decided, consists in the fact that the defendants' claims are above, and not below the head of the plaintiff's ditch.

It is difficult to discover why the principle which governa one case should not be equally applicable to the other, or why, if the law gives to the first appropriator a right to the use of the water, pure and undiminished, as against the subsequent appropriator below, he should be allowed by a mere change of position to evade the consequences of the rule, and to place himself in a position which would destroy the rights of the first appropriator.

The right to appropriate the waters of the streams of this