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tainly state which part of them is his own. They hold by unity of possession, though their titles be distinct. If this unity is destroyed, the tenancy no longer exists." Whether joint appropriators, holding the estate as joint tenants or tenants in common, the same is the result. Each can recover the whole, or take the necessary steps to protect the whole against the acts of a wrong-doer.”2
Further, a court of equity has power to ascertain and determine the extent of the rights of property in water flowing in a natural water-course, acquired by persons who hold and are entitled to them, and to regulate, between or among them, the use in the flow of the water in such a way as to maintain equality of rights in the enjoyment of the common property:: Hence, where one of two or more co-owners, in the use of water of a stream appropriated by them for beneficial purposes, diverts for use a greater quantity of water than of right belongs to him, so as to materially diminish the quantity to which the others are entitled, such parties are entitled to enjoin the wrongdoer from diverting the water to their injury. But it is held that water flowing in a ditch and owned by tenants in common cannot be mechanically partitioned. The only partition which a court can make, which will definitely and permanently end disputes of tenants in common in water used for mining purposes, is to order a sale and a distribution of the proceeds. A tenancy in common in a water-ditch, arising under a deed, is not severed by claiming under a promise or parol license from a third person, where the deed and promise appear to be parts of the transaction. A tenant in common in certain water rights of a ditch for mining purposes, its use for mining having been abandoned and its flow turned into another stream, may recapture and use his proportion of the water for irrigation or other lawful purposes.']
1 Citing 2 Bl. Comm. 191, 192; Carpentier v. Webster, 27 Cal. 524.
Lytle Creek Water Co. v. Per. dew, 65 Cal. 447, 4 Pac. Rep. 426.
3 Frey v. Lowden, 70 Cal. 550, 11 Pac. Rep. 838. 4 Lorenz v. Jacobs, (Cal.) 3 Pac.
Rep. 654; citing Story, Eq. Jur. & 927. See, also, Combs v. Slayton, 19 Oreg. 99, 26 Pac. Rep. 661.
5 McGillivray v. Evans, 27 Cal. 92.
6 Campbell v. Shivers, 1 Ariz. 161, 25 Pac. Rep. 540.
$ 64. Right to natural flow of water at head of
Although the appropriator has no property in the water of the stream flowing in its natural channel above his point of diversion, yet he acquires a inost important right over or with respect to such water. This general right over the stream, of the party who has perfected a prior appropriation, is that the water of the stream should continue to flow in its usual manner, through the natural channel or bed of the stream, down to the head of his ditch, or to the point where his own actual dominion over it commences, to the extent or amount of his appropriation, without diversion or material interruption. In a recent decision the court used the following language descriptive of this right: “The plaintiff's right to have the water flow in the river to the head of his ditch is an incorporeal hereditament appurtenant to his [artificial] water-course, [i. e., his ditch.) Granting that the plaintiff does not own the corpus of the water until it shall enter his ditch, yet the right to have it flow into the ditch appertains to the ditch." In another case a ditch con
3 veying water for purpose of sale to miners, took its water from a stream near its head in the mountains, and thence ran for a
1 Meagher v. Hardenbrook, 11 Mont. 385, 28 Pac. Rep. 451.
2 Lower Kings River, etc., Co. v. Kings River, etc., Co., 60 Cal. 408; Parks Canal & M. Co. v Hoyt, 57 Cal. 44; Reynolds v. Hosmer, 51 Cal. 205; McDonald v. Askew, 29
Cal. 200; Phonix W Co. v. Fletcher, 23 Cal. 481; Natoma W. & M. Co. v. McCoy, Id. 490; Kidd v. Laird, 15 Cal. 161; Barnes v. Sabron, 10 Nev. 217.
3 Lower Kings River, etc., Co. v. Kings River, etc., Co.. 60 Cal. 408. 1 Reynolds v. Hosmer, 51 Cal. 205.
distance of twenty-four miles, the water flowing through its entire length. The title to the upper half of the ditch was vested in A., and that of the lower half in B. A. was held to be entitled to the exclusive use of the water from the stream at the head of the ditch.' In Phönix Water Co. v. Fletcher it was held that the prior appropriator of a stream on the public lands, for mining purposes, has a right to have the water flow down the stream, above the point of his appropriation, without interruption or diminution in quantity.
$ 65. What are streams subject to appropriation.
The question here arises, what is a "stream” which may thus be appropriated? I do not purpose to enter into any full discussion of this question, which may be regarded as rather speculative than practical throughout these Pacific communities. It is sufficient to say that there must be an actual, natural stream, with detined banks, bed, channel, and current, as contradistinguished from a mere occasional torrent or flow of surface water from rains or melting snow, through a hollow or depression in the surface of the soil. The essential nature of a “stream” which can be appropriated was briefly but accurately described by the supreme court of Nevada in a leading case:3 "To maintain the right to a water-course, it must be made to appear that the water usually flows therein in a certain direction, and by a regular channel with banks or sides. It need not be shown to flow continually, and it may at times be dry, but it must have a welldefined and substantial existence.” It would plainly be impracticable to require, as an essential element of a "stream" in these Pacific states and territories, that the flow of water should be continuous, uninterrupted, and perennial, during the entire year, and from year to year.
It is well known that some of
223 Cal. 481.
the most important and well-defined streams in these regions become dry throughout the whole or a considerable portion of their lengths during certain seasons of each year. It is, perhaps, more correct to say that their waters sink beneath their beds, and flow beneath the surface instead of in their channels on the surface. All these streams, nevertheless, have well-defined beds, channels, banks, and currents, and are in every respect natural “streams."
$ 66. Definition and characteristics of a water
[In order to constitute a water-course, there must be a defined channel, banks, and water usually flowing in a particular direction. It need not flow constantly; it may at times be dry; but the source, it is usually said, must be natural, certain, and definite, and not dependent upon the fluctuations of the seasons, as the falling of rain and the melting of snow. But if the face of the country is such as necessarily to collect in one body so large a quantity of water, after heavy rains or melting of snows, as to require an outlet to some common reservoir, and if such water is regularly discharged through some well-defined channel, which the force of the water has made for itself, and which is the accustomed channel through which it flows and has flowed from time immemorial, such channel is a natural water-course. The supreme court of Oregon, in a recent case, upon a review of the authorities bearing on this question, remarks that “the conclusion to be deduced from these decisions is that a water-course is a stream of water usually flowing in a particular direction, with well-defined banks and channels, but that the water need not flow continuously,—the channel may sometimes be dry; that the term 'water-course' does not include water descending from the hills, down the hollows :ind ravines, without any def. inite channel, only in times of rain and melting snow; but that where water, owing to the hilly or mountainous configuration of the country, accumulates in large quantities from rain and melting snow, and at regular seasons descends through long deep gullies or rarines upon the lands below, and in its onward flow carves out a distinct and welldefined channel, which even to the casual glance bears the unmistakable impress of the frequent action of running water, and through which it has 'flowed from time immemorial, such a stream is to be considered a water-course, and to be governed by the same rules.”1
1 Hanson v. McCue, 42 Cal. 303; Ely v. Ferguson, 91 Cal. 187, 27 Pac. Rep. 587; Geddis v. Parrish, 1 Wasb. St. 587, 21 Pac. Rep. 314; Raymond v. Wimsette, (Mont.) 31 Pac. Rep. 537; Robinson v. Shanks, 118 Iod. 125, 20 N. E. Rep. 713; Case v. Hoffman. (Wis.) 54 N. W. Rep. 793; Dickinson v. Worces. ter, 7 Allen, 19; Shields v. Arndt.
4 N. J. Eq. 234; Gillett v. Johnson. 30 Conn. 180; Luther v. Winni. simmet Co., 9 Cush. 172; Macomber v. Godfrey, 108 Mass. 219; Ashley v. Wolcott, 11 Cush. 192; Gannon v. Hargadon, 10 Allen, 106; Buffum v. Harris, 5 R. I. 243.
2 Earl v. De Hart, 12 N. J. Eq. 280: Palmer v. Waddell, 22 Kan. 352. See, also, Union Pac. R. Co. v. Dyche, 31 Kans. 120, 1 Pac. Rep. Lambert v. Alcorn. (III.) 33 N. E. 243; Chicago, K. & W. R. Co. v. Rep. 53. In the case of West v. Morrow, 42 Kans. 339, 22 Pac. Rep. Taylor, 16 Oreg. 165, 13 Pac. Rep. 413. Compare, however, Parks v. 665, it appeared that A. owned Newburyport, 10 Gray, 28.
Surface water, without a spring, when it has flowed in a certain direction for such a length of time as to have naturally formed a bed and banks and well-defined stream of flowing water, even though it may sometimes be dry at the place where it has formed such banks and bed, is still a water-course at that point. A creek which has a natural channel three-fourths of
lands adjoining a lake, about two 1 Simmons v. Winters, 21 Oreg. miles long and half a mile wide, fed 35, 27 Pac. Rep. 7.
by perennial springs and a moun. 2 Eulrich v. Richter, 41 Wis. 318; tain creek. Originally the main Kelly v. Dunning, 39 N. J. Eq. 482; outlet from the lake was a second Pyle v. Richards, 17 Neb. 180, s. c. creek, into which the waters flowed 22 N. W. Rep. 370. See, also, at ordinary stages. From the west