stituting a valid claim to its continued use, than the establishment of a new one."

§ 18. Limits of the doctrine of appropriation-The early cases.

2

It will aid in the subsequent examination of the open questions to fix the exact extent and limits of the doctrine thus formulated, and to ascertain the grounds upon which it was rested by the courts. A very few of the earliest cases enter into no discussion, and seem to speak as though the rule were universal, applicable to all waters under all circumstances. But most. of these early decisions state the reasons for the doctrine in the most express manner, and thus indicate its grounds, extent, and limits. One or two illustrations will suffice. In Hoffman v. Stone, Murray, C. J., said: "The former decisions of this court, in cases involving the right of parties to appropriate waters for mining and other purposes, have been based upon the wants of the community, and the peculiar condition of things in this state, (for which there is no precedent,) rather than any absolute rule of law governing such cases. The absence of legislation on this subject has devolved on the courts the necessity of framing rules for the protection of this great interest, and in determining these questions we have conformed, as nearly as possible, to the analogies of the common law. The fact early manifested itself, that the mines could not be successfully worked without a proprietorship in waters, and it was recognized and maintained. To protect those who, by their energy, industry, and capital, had constructed canals and races carrying water for miles inte

1 Broder v. Natoma Water Co., 101 U S. 274. The act of congress of 1866 merely confirms to landowners the rights and privileges they had formerly enjoyed by local customs and the decisions of

the courts. Jones v. Adams, 19 Nev. 78, 6 Pac. Rep. 442.

2 See, for example, Hill v. Newman, 5 Cal. 445; Kelly v. Natoma W. Co., 6 Cal. 107.

37 Cal. 47, 48, (1875.)

parts of the country which must have otherwise remained unfruitful and undeveloped, it was held that the first appropriator acquired a special property in the waters thus appropriated; and, as a necessary consequence of such property, might invoke all legal remedies for its enjoyment or defense. A party appropriating water has the sole and exclusive right to use the same for the purposes for which it was appropriated, and, so long as he is not obstructed in the use thereof, he has no ground of action."

It should be observed that the waters referred to in this opinion were all upon public lands. In the case of Bear River Min. Co. v. New York Min. Co.1 the reasons for the doctrine were stated by Mr. Justice Burnett more fully: "It may be said with truth that the judiciary of this state has had thrown upon it responsibilities not incurred by the courts of any other state in the Union. We have had a large class of cases unknown in the jurisprudence of our sister states. The mining interest of the state has grown up under the force of new and extraordinary circumstances, and in the absence of any specific and certain legislation to guide us. Left without any direct precedent, as well as without specific legislation, we have been compelled to apply to this anomalous state of things the analogies of the common law and the more expanded principles of equitable justice. There being no known system existing at the beginning, parties were left without any certain guide, and for that reason have placed themselves in such conflicting positions that it is impossible to render any decision which will not produce great injury, not only to the parties immediately connected with the suit, but to large bodies of men, who, though not formal parties to the record, must be deeply affected by the decision. No class of cases can arise more difficult of a just solution, or more dis

18 Cal. 327, 332, (1875.)

tressing in practical result. The business of gold mining was not only new to our people, and the cases arising from it new to our courts, and without judicial or legislative precedent, either in our own country or in that from which we have borrowed our jurisprudence, but there are intrinsic difficulties in the subject itself which it is almost impossible to settle satisfactorily, even by the application to them of the abstract principles of justice. Yet we are compelled to decide these cases, because they must be settled in some way, whether we can say, after it is done, that we have given a just decision or not. The uses of water for domestic purposes, and for the watering of stock, are preferred uses, because essential to sustain life. Other uses must be subordinate to these. In such cases the element is entirely consumed. Next to these may properly be placed the use of water for irrigation in dry and arid countries. In such cases the element is almost entirely consumed. Under a proper system of irrigation, only so much water is taken from the stream as may be needed, and the whole is absorbed or evaporated. Entire absorption is the contemplated result of irrigation. Where properly used as a motive power for propelling machinery, the element is not injured, because the slight evaporation occasioned by the use is unavoidable, and is not esteemed by the law a substantial injury. Considering the different uses to which water is applied in countries governed by the common law, it is not so difficult to understand the principles which regulate the relative rights of the different riparian proprietors. As to the preferred uses, each proprietor had the right to consume what was necessary, and after doing this he was bound to let the remaining portion flow, without material interruption or deterioration, in the natural channel of the stream to others below him. If the volume of water was not sufficient for all, then those highest up the stream were supplied in preference to those below. [The correctness of the proposition contained in this

sentence, as a common-law rule, may be questioned.] So far as the preferred uses were concerned, no one was allowed to deteriorate the quality of the water; and, for the purposes of a motive power, there was no use of the element which could impair its quality. But in our mineral region we have a novel use of water, that cannot be classed with the preferred uses, but still a use which deteriorates the quality of the element itself, when wanted a second time for the same purposes. In cases heretofore known, either the element was entirely consumed, or else its use did not impair its quality when wanted again for the same purpose. This fact constitutes the great difficulty in this and other like cases. If the use of water for mining purposes did not deteriorate the quality of the element itself, then the only injury that could be complained of would be the diminution in the quantity and the interruption in the flow. In repeated decisions of this court, it has been uniformly held that the miners were in the possession of the mineral lands under a license from both the state and the federal governments. This being conceded, the superior proprietor must have had some leading object in view when granting this license; and that object must have been the working of these mineral lands to the best advantage. The intention was to 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."

The conclusion was reached in this and other cases that the right of the first appropriator of water from a stream on the public domain is equally protected, so far as the quantity is con

cerned, from damage occasioned by subsequent locators above him, as well as below him. But as to the deterioration in the quality alone of the water, by reason of its being used by others for mining purposes before it reaches the ditch of the prior appropriator, this must be deemed damnum absque injuria. Any other rule, it was said, would involve an absolute prohibition of the use of all the water of a stream above any prior appropriator, in order to preserve the quality of a small portion taken by him from the stream.

§ 19. Views of the United States supreme court.

It may be instructive to compare these early views of the California court with the recent judgments pronounced by the supreme court of the United States. In Atchison v. Peterson,1 which came up from Montana, Mr. Justice Field said: "By the custom which has obtained among miners in the Pacific states and territories, where mining for the precious metals is had on the public lands of the United States, the first appropriator of mines, whether in placers, veins, or lodes, or of waters in the streams on such lands for mining purposes, is held to have a better right than others to work the mines or to use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purpose, is regarded, except as against the government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law declaratory of the rights of riparian owners were, at an early day, after the discovery of gold, found to be inapplicable, or applicable only in a very limited extent, to the necessities of the miners, and inadequate to their protection. By the common law the riparian owner on a stream not navigable takes the land to the center

120 Wall. 507, (1874.)