a mile long, with a bed of varying depth and width, through which surface-water is discharged into a stream, is a watercourse; and the fact that it is dry most of the time does not deprive it of that character.' But a ditch, by means of which the waters of a natural stream are diverted, is not itself a watercourse, though it is partly formed of ravines and gullies through which surface-water has occasionally flowed.2 In regard to the channel of the stream, it is required that it should have a distinct and substantial existence, with well-defined banks formed by the flow of the water, and presenting unmistakable evidence to the eye of the frequent action of running water. Thus, sloughs or swales, hollows or ravines, by which water passes over land, are not, in the technical sense, watercourses. Upon this point we find some instructive remarks in a recent decision of the supreme court of California. It was said by McKinstry, J.: "It is not essential to a water-course that the banks shall be unchangeable, or that there shall be everywhere a visible change in the angle of ascent marking the line between bed and banks. The law cannot fix the limits of variation in these and other particulars. As was said, in effect, by ern part of the lake flowed a third creek, which emptied into a creek that flowed into the Pacific ocean. The main outlet becoming choked up with sand, the waters overflowed the lands of B. and C. on the north of the lake, forming marshes and swales, and escaped into a creek flowing into a bay; and for several years this was the main outlet from the lake. B. and C. erected a dike to protect their land, which raised the water in the lake, and threw it back upon A.'s land, overflowing about one thousand acres. Previous to erecting the dike, B. and C. had cut two ditches that carried the water off LAW W. R.-8 their land. On this state of facts it was held that the waters on the lands of B. and C. could not be considered merely as surface water, but constituted a watercourse, and that B. and C. had no right to erect the dike. 1 Ferris v. Wellborn, 64 Miss. 29, 8 South. Rep. 165. 2 Simmons v. Winters, 21 Oreg. 35, 27 Pac. Rep. 7. 3 Gibbs v. Williams, 25 Kan. 214, s. c. 37 Amer. Rep. 241; Shively v. Hume, 10 Oreg. 76; Razzo v. Varni, 81 Cal. 289, 22 Pac. Rep. 848. 4 Jones v. Wabash, etc., R. Co., 18 Mo. App. 251. (113) course. Curtis, J., in Howard v. Ingersoll, 13 How. 428, the bed and banks or the channel is in all cases a natural object, to be sought after, not merely by the application of any abstract rules, but, like other natural objects, to be sought for and found by the distinctive appearances it presents.' Whether, however, worn deep by the action of water, or following a natural depression without any marked erosion of soil or rock; whether distinguished by a difference of vegetation, or otherwise rendered perceptible,- —a channel is necessary to the constitution of a waterOf course, we cannot judicially declare that a channel. is of such a nature that it can never cease to exist. Both the evidence and findings herein show that, as a result of the action of water, channels have been closed and new channels formed. We cannot say but the indications of a channel may be removed by other natural forces. We can conceive that along the course of a stream there may be shallow places where the water spreads, and where there is no distinct ravine or gully. Two ascending surfaces may rise from the line of meeting very gradually for an indefinite distance on each side. In such case, if water flowed periodically at the lowest portion of the depression, it flowed in a channel, notwithstanding the fact that, the water being withdrawn, the 'distinctive appearances' that it had ever flowed there would soon disappear." On the other hand, in a later case from the same court, it appeared that the owner of lands, upon which there was a lagoon having no natural outlet, cut a ditch for irrigating purposes. Thereafter he conveyed part of the land on which the lagoon was situated to the defendants, and the remainder of his lands to the plaintiffs. The irrigating ditch ran between the different tracts conveyed. By parol permission of their grantor, (the defendants,) the plaintiffs had used the waste waters of the ditch. On this state of Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 770. facts it was held that, the water never having flowed in any natural channel, the plaintiffs never acquired any riparian rights in the flow of water in the ditch.'] § 67. Percolating and subterraneous waters. [Percolating waters collected or gathered in a stream, running in a defined channel, are such property or incidents thereof as may be acquired by grant, express or implied, or by appropriation; and, when rights in them are thus acquired, the owner cannot be divested of his rights by the wrongful act of another.2 Thus a lake, fed by streams and having a natural channel, and whose waters find exit by percolation in a perceptible current through a bed of gravel, is a running stream, and may not be obstructed so as to set back upon the lands of another. The word "percolate," as used in the cases relating to the right of land-owners to use water on their premises, designates any flowage of sub-surface water other than that of a running stream, open, visible, and clearly to be traced. But in California, where the Civil Code (§ 1410) provides that the right to the use of "running water flowing in a river or stream, or down a canon or ravine," may be acquired by appropriation, it is held that percolating water which seeps into a spring from a swamp, or wet land surrounding the same, is not subject to appropriation.5 In regard to subterranean streams, the general consensus of the authorities appears to be that, if an under-ground current of 1 Green v. Carrotto, 72 Cal. 267, 13 Pac. Rep. 685. And see Gillett v. Johnson, 30 Conn. 180; Macomber v. Godfrey, 108 Mass. 219. 2 Cross v. Kitts, 69 Cal. 217, s. c. 10 Pac. Rep. 409; Brown v. Ashley, 16 Nev. 317. 3 Hebron Gravel Road Co. v. Harvey, 90 Ind. 192, s. c. 46 Amer. 4 Mosier v. Caldwell, 7 Nev. 363. 5 Southern Pac. R. Co. v. Dufour, 95 Cal. 615, 30 Pac. Rep. 783. water flows in a known and well-defined channel, so as to constitute a regular and constant stream, the riparian owner may invoke the same rules, in insisting upon its uninterrupted flow, which exist in the case of water-courses upon the surface.' And so, where the exact course of water which has once emerged and sunk can be traced to where it emerges again, the proprietor at this point is protected in its use as if it were not a subterranean stream.2 But if the water flows beneath the surface without a definite channel, or in courses which are unknown or unascertainable, it is not subject to the settled law governing the rights of riparian owners.3] § 68. Right to exclusive use of water. Such being the appropriator's right over the stream as such, I proceed to consider his rights over the water which comes under his exclusive control by means of an actual diversion and appropriation. The general doctrine is settled, by the unanimous consent of the authorities, that the prior appropriator is entitled to the exclusive use of the water, up to the amount embraced in his appropriation, either for the original purpose or for any other or different purpose, provided the amount is not thereby increased, without diminution or material alteration in quantity or in quality; and his use will, to that extent and for such purposes, be protected against all subsequent appropriators or claimants using or interfering with the water, both above and 'Dickinson v. Grand Junction Canal Co., 7 Exch. 282; Chasemore v. Richards, 2 Hurl. & N. 186; Cole S. Min. Co. v. Virginia Water Co., 1 Sawy. 470; Hale v. McLea, 53 Cal. 578; Strait v. Brown. 16 Nev. 317; Mahan v. Brown, 13 Wend. 261; Smith v. Adams, 6 Paige, 435; Wheatley v. Baugh, 25 Pa. St. 523; Whetstone v. Bowser, 29 Pa. St. 59; Haldeman v. Bruckhart, 45 Pa. St. 514: Taylor v. Welch, 6 Or. 198. 2 Saddler v. Lee, 66 Ga. 45, s. c. 42 Am. Rep. 62. 3 Chasemore v. Richards, 7 H. L. Cas. 349; Dickinson V. Grand Junction Canal Co., 7 Exch. 282; Acton v. Blundell, 12 Mees. & W. Haldeman v. Bruckhart, 45 Pa. St. 514; Taylor v. Welch, 6 Or. 198. below on the same stream; and to this end he may obtain all proper remedies, legal and equitable.' As illustrations, it is held in Kimball v. Gearhart that, when the appropriator has completed his ditch so as to receive the water appropriated, "he is then entitled to said water as against all persons subsequently claiming or locating it;" and "possession or actual appropriation is the test of priority in all claims to the use of water, when such claims are not dependent upon the ownership of the land through which the water flows." In Ortman v. Dixon it is held that "a prior appropriator of water for mill purposes is entitled to it to the extent of his appropriation, and for those purposes to the exclusion of any subsequent appropriation for the same or for other purposes." In Barnes v. Sabron the supreme court of Nevada held that "the first appropriator, for purposes of irrigation, of the water of a stream running through the public lands, has the right to insist that the water flowing therein shall, during the irrigating season, be subject to his reasonable use and enjoyment to the full extent of his original appropriation and beneficial use. To this extent his rights go, but no further; for, in subordination to such rights, subsequent appropriators may appropriate the remainder of the water running in said stream." 1 Himes v. Johnson, 61 Cal. 259; Stein Canal Co. v. Kern Island I. C. Co., 53 Cal. 563; Reynolds v. Hosmer, 51 Cal. 205: Gregory v. Nelson, 41 Cal. 278: Clark v. Willett, 35 Cal. 534; Davis v. Gale, 32 Cal. 25; McDonald v. Askew, 29 Cal. 200; Hill v. Smith, 27 Cal. 476; 32 Cal. 166; Rupley v. Welch, 23 Cal. 453; Phoenix W. Co. v. Fletcher, Id. 482; Natoma W. Co. v. Mc Coy, Id. 490; Butte, etc., Co. v. Morgan, 19 Cal. 609; Kidd v. Laird, 15 Cal. 161; Kimball v. Gearhart, 12 Cal. 27; Ortman v. Dixon, 13 Cal. 33; Bear River, etc., Co. v. New York M. Co., 8 Cal. 327; Ophir Silver M. Co. v. Carpenter, 4 Nev. 534; Barnes v. Sabron, 10 Nev. 217; Strait v. Brown, 16 Nev. 317; Atchison v. Peterson, 20 Wall. 515. (117) |