4. Practice-Verdict and judgment not disturbed.—Courts will not
disturb a verdict where there is evidence to support it, or reverse a judg-
ment where, from the whole record, justice appears to have been done.
Caruthers v. Pemberton,
623
5. Verdict set aside-Want of diligence.-Due diligence is a question
for the jury, but the term is sufficiently well defined to justify a court in
setting the verdict aside, when, upon an admitted state of facts, there ap-
pears an utter want of diligence. Ophir Mining Co. v. Carpenter,
1. Personal liability where title fails to pass.—And it was further
held, that the articles did not prevail against a deed to a stranger, though
the maker was personally liable on the articles to make good his privilege.
Snodgrass v. Ward,
1. Detention exercised with reference to rights of lower proprietors.—
The right to use necessarily implies the right to detain, not to divert, the
water; and this detention must be reasonable, and be exercised with ref-
erence to and in aid of the grant made to the lower mill. Oregon Iron
Co. v. Trullenger,
247
2. Surplus water-Subsequent appropriators.-Subsequent locators
may appropriate the surplus waters of a stream left after a prior appro-
priation, and when the rights of such subsequent appropriators once
attach, the prior appropriator can not encroach upon them by extend-
ing his appropriation; nor can he enlarge his ditch or dam so as to retain
what he originally appropriated, if through intervening accidents (as the
filling of the stream-bed with tailings) such enlargement would interfere
with such intervening rights. In such a case when a right has once
vested in the subsequent appropriator, the prior appropriator would be
no more justified in extending his claim or changing the means of appro-
priation, to the prejudice of the second appropriator, than the latter
would be in encroaching upon the prior rights of the first. Nevada Water
Co. v. Powell,
254
3. Necessity of water.-The loss of its water may be equivalent to
the destruction of all value to the claim. Jennison v. Kirk,
505
4. Sufficiency of complaint to admit of proof of diversion.-A com-
plaint alleged that "plaintiffs are entitled, by virtue of prior appropria-
tion, to all the water flowing in the cañon at the head of their ditch, and
that defendants diverted the water to their damage": Held, that it was
not necessary to state whether the water was supplied at that point by one
or more streams, in order to admit proof of a diversion of water from above
the ditch. Priest v. Union Canal Co.,
515
5. Diminution of water supply.-The first appropriator of water by
means of a ditch is entitled to have the water flow, without material inter-
ruption in its natural channel, so undiminished in quantity as to leave suf-
ficient to fill his ditch as it existed at the time the later locations were
made above. Bear River & A. W. Co. v. New York M. Co.,
526
6. Deterioration in quality of water.-The deterioration in the quality
of the water in the ditch by means of its use for mining purposes above,
should be considered as an injury without consequent damage. Id.
7. Reclamation after flowing back into natural stream-Mingling
waters.-V. turned certain water which he had appropriated into a nat-
ural ravine, whence it flowed into Jackson creek, and mingled with the
waters of that stream, but after descending about a mile was again
taken up at a point above the Butte Co.'s claim and diverted by V. to his
mining claim. The Butte Co. brought suit for diversion: Held, that the
prior right to the use of the natural water of a stream does not entitle the
owner of such a right to the exclusive use of the channel. So long as his
right is not interfered with, there is no reason why the bed of the stream
may not be used by others as a channel for conducting water. Held, fur-
ther, that the water introduced by V. did not necessarily become subject to
the use of the Butte Co., because its identity was lost by being mingled
with the water naturally flowing in the creek. The rights of the parties
after such mingling are not unlike the rights of the owners of goods of
equal value after their mixture-both are entitled to take their given
quantity. Butte Canal Co. v. Vaughn,
552
8. Rights to running water.-Running water, so long as it continues
to flow in its natural course, can not be made the subject of private owner-
ship. A right may be acquired to its use which will be regarded and
protected as property, but this rght carries with it no specific property
in the water itself. Kidd v. Laird,
9. Property or right.-The owner of a ditch has exclusive and abso-
lute power of control over and right of enjoyment in the water running
in his ditch, whether the water is or is not, in a strict legal sense, his pri-
vate property. Id.
10. Right to change point of diversion.—A party entitled to divert a
given quantity of water from a stream, may exercise the right at any point
on the stream and may change the point of diversion at pleasure, provided
he does not injuriously affect the rights of others. Id.
11. 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, pro-
vided the rights of intervening locators be not injuriously affected. Butte
T. M. Co. v. Morgan,
583
12. Illegal diversion of water prevented by use of force.-The plaint-
iff 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. Id. ̧
13. Common law controlled by conditions.-The reasons which con-
stitute the groundwork of the common law upon the subject of water
rights, remain undisturbed. The conditions to which courts are called
upon to apply them are changed, and not the rules themselves. The
maxim sic utere tuo ut alienum non lædas, has lost none of its governing
force. Hill v. Smith.
14. Maxims controlling the relative rights of miners and ditch own-
ers and of prior and later appropriators. Id.
15. Test of injury to water rights.-The question of injury to water
rights by diminution or deterioration, must be determined in view of the
use to which the water is applied, in connection with other circumstances.
The question is, has the enjoyment of the water for the purposes for
which the first appropriator claims it, been impaired by the acts of the
subsequent claimant. Id.
16. Water turned into stream by strangers.—If the volume of water
in a stream is increased by the acts of third parties, without any inten-
tion of recapture by them, such increase becomes publici juris, and the
relative rights of appropriators along the stream remain the same as be-
fore. The case is not different from an increase from natural causes.
Davis v. Gale,
605
17. Rights by adverse possession, when not prejudiced.—One who has
adverse possession of water as against the prior appropriator, does not
prejudice his right by the fact that he allows a certain quantity of water
to run down to miners at work below. Such an act is no concession to the
18. Relief in equity for disputed water rights.-When two parties
each cla'm the prior right to the use of water for mining purposes, equity
seems to be the only appropriate remedy to afford relief. Barkley v.
Tieleke,
19. Damages for diverting water-Contributory negligence.-If a man
is deprived of three fourths of the water he is entitled to by the wrongful
act of another, it is no defense to an action for damages that he has al-
lowed a portion of the remaining fourth to run to waste. The doctrine of
contributory negligence has no application to such a case. Barnes v.
Sabron,
20. Nominal damages-Decree fixing amount of water party is en-
titled to.-Defendants diverted water from plaintiff's crops, claiming to
have the better right thereto. Held, that though plaintiff suffered no
actual damage, yet the diversion might by lapse of time ripen into a pre-
scriptive right, and for this reason plaintiff was entitled to recover nominal
damages, and to an equitable decree declaring the amount of water to
which he was entitled.
See APPROPRIATION; CONTRACT, 9, 10; DAM; DITCH; ESTOPPEL, 5;
PATENT, 1; STATUTE OF LIMITATIONS, 3.
1. Natural water course-Sinking stream.-A stream in Nevada sup-
plied at seasons from springs, but mostly from the melting snow on the
mountains, having no regularity as to quantity of water from season to
season, and at certain places at cer'in seasons having sinks, where the
water disappears beneath the surface, leaving, however, a distinct chan-
nel, with bed and banks, is a natural water course-a "flowing stream
of water"; a water course as distinguished from water flowing through
ravines only in times of freshet; and it need not appear that it is water
flowing continuously. Barnes v. Sabron,
1. Measurement of capacity of ditch.-The amount of water appro-
priated by a ditch should be estimated by measuring it according to
miners' measurement, near the head of the ditch, when it is full, or con-
veying all it has capacity to. Caruthers v. Pemberton,
See APPROPRIATION, 13, 16; CONTRACT, 1; DITCH, 9, 19, 20.
1. Interest of witness.-In a suit to recover a mining claim which had
been conveyed to the plaintiff by quitclaim deed, an objection that the
plaintiff's grantor is an incompetent witness on the ground of interest, is
not well taken. Johnson v. Parks,
2. Interest of witness.-One of a company of miners suing for pos-
session of a claim, who has sold his interest before suit, but after the loca-
tion of the claim sought to be recovered, is interested in the damages
claimed and is not a competent witness. Packer v. Heaton,
447
3. Interested witness-Waiver.-An objection to the testimony of a
witness on the ground of interest should be made as soon as it appears
that he is interested, and a failure to do so then is a waiver of the objec-
tion. Bear River Mining Co. v. Boles,
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