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owner cannot, by prior appropriation, acquire the right to divert the water-course as against a lower proprietor, so he cannot by such priority acquire a right to consume the entire stream for mechanical purposes, as by converting it into steam. The question whether the use of a stream to carry off manufacturer's waste is reasonable or not, is one of fact for the jury, depending upon the circumstances of the case, such as the size and character of the stream, the purpose of its use, the benefit to the manufacturer, and the injury to the other riparian owners."]

§ 142. Manner of use must be reasonable.

[The maxim, sic utere tuo ut alienum non lædas, emphatically applies to riparian proprietors. For example, a riparian proprietor, in using the water of a stream for domestic purposes and watering cattle, has no right to so dam it up as to spread it over a large surface, whereby it becomes lost by evaporation and absorption to an extent to prevent the stream from flowing through the land of the next proprietor, as it would do but for such dam. But a riparian owner may dam the stream in order to

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version of a water-course, or a part pipes to reservoirs, whence its lo. of it, by an upper riparian propri- comotives were supplied with waetor, for manufacturing purposes, ter. The jury found, on sufficient without restoring to the channel evidence, that the water so divertthe excess of water not actually ed from the creek was sufficient consumed, is an unreasonable ex- "to perceptibly reduce the volume ercise of the right to use the water of water therein," and to "mateof the stream. Weiss v. Oregon rially reduce or diminish the grindIron & Steel Co., 13 Or. 496, s. C. ing power of plaintiff's mill,” and 11 Pac. Rep. 255.

that in consequence he had sus1 Bliss v. Kennedy, 43 Ill. 67. In tained damage to a substantial Garwood v. Railroad, 83 N. Y. 400, amount. Held, that plaintiff might plaintiff was the owner of a mill recover the damages sustained, operated by water-power fur- and have the diversion enjoined. nished by a creek. Defendant, (a 2 Hayes v. Waldron, 44 N. H. 580. railroad corporation,) who was a 3 Burwell V. Hobson, 12 Grat. riparian owner above,

322. claim of right, diverted the waters * Ferrea v. Knipe, 28 Cal. 340. of the creek, conveying them by

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make a pond for ice, and he may drain such pond, and hold back the water until he shall have cleaned out the pond in order that the ice may be pure. Those below cannot complain of such use.')

1 De Baun v. Bean, 29 Hun, 236. (284)

CHAPTER VIII.

USE OF WATERS FOR IRRIGATION.

& 143. Irrigation of riparian lands-Ellis v. Tone.

144. Limited authority of foregoing decision.
145. Tendency of decision in Ellis v. Tone.
146. The question as to irrigation stated.
147. No right to irrigate non riparian lands.
148. Prior appropriation gives no exclusive right.
149. Relative equality of riparian owners.
150. Size of stream.
151. Reasonable use for irrigation.
152. Easements and adverse user.
153. Relation of irrigation to the natural wants.
154. Summary of principles.
155. Irrigation—The English authorities.
156. French law.
157. Review of the American authorities.
158. Review of authorities continued–The Pacific cases.
159. Surplus water must be restored.

$ 143. Irrigation of riparian lands-Ellis v. Tone.

We are now brought to the question, how far do the riparian rights of a private riparian proprietor, under the law of California and other states, include the right to use the water of the stream for the purpose of irrigating his land? The only recent decision which deals directly with this question to any extent, or in any manner, is found in the case of Ellis v. Tone,' decided in 1881. Unfortunately this case is so reported that it does not throw much light upon the general question. The action was tried before a jury, but the report does not give the entire charge of the court, so that it may be seen upon what general theory of the law, or upon what admitted doctrine, the cause was tried and the recovery had. Certain detached clauses of the charge were excepted to, and certain special instructions were refused, and these alone have been given by the reporter.

158 Cal. 289. [The editor's review of the Pacific cases decided since the foregoing was written,

as well as of numerous others, will be found in SS 155-159, in/ra.)

The opinion of the court is also confined to an examination of the specific exceptions, and does not enter into any discussion of the general doctrines upon which the case, as a whole, must have rested. The case, however, is the most recent published decision which deals with the right to use water for purposes of irrigation, and we shall state it in substance, by way of introduction to the discussion of this most important question.

The action was brought to recover from defendants damages for diverting water from Mormon slough, a natural water-course, by which plaintiffs were prevented from irrigating their growing crops in 1877. A verdict was rendered in favor of the plaintiffs. Defendants moved for a new trial, which was denied, and they appealed. The facts, as stated in the report, were as follows: Mormon slough or channel heads from and runs out of the Calaveras river east of Stockton, and about four miles northeasterly from plaintiffs land, and flows thence in a south-westerly direction to the Stockton channel, a distance of about twenty miles. The slough runs through the land of the plaintiffs in two channels. The defendants own land on the Calaveras river, below the point where the Mormon slough runs out of that river. The slough is a natural water-course, having a well-defined channel and banks. In 1850, before the channel of the Calaveras river was filled in by mining débris, it (the lower channel of said river) was from four to six feet lower than the bed of the slough, so that the waters of the river did not flow into the slough until the waters of the river had risen from four to six feet. But the channel of the river has since been so filled up by débris that, when the water is low, most or nearly all of it runs and has run into and through the slough. That has been the case since 1862, unless prevented by artificial means, so that in dry seasons, or in the dry season of the year, nearly all of the water ran into the slough; and during the whole of the year water was in the slough, while in the dry season little or none ran in the river below the head of the slough. In the fall of 1876 and winter of 1877 plaintiffs put in a crop of wheat and barley on their land, through which the slough ran as above stated. The plaintiffs made arrangements to irrigate this land in the next spring (of 1877) by damming the north channel of the slough, so as to make the water flow into the south channel, on the banks of which their crop was growing. This arrangement was completed in April, 1877. They then found that defendants had stopped the entrance of the slough by digging a ditch in the bed of the river, and by damming the exit of the slough from the river, so that the water was com pelled to flow down the river, instead of flowing, as had been the case for fifteen years, into the slough. In consequence of this the water was cut off from the slough. the plaintiffs were unable to irrigate, and their crop was a failure. Evidence also showed that in the spring of 1877 the detendants had purchased from the Mokelumne Canal Company four hundred miner's inches of water, to be furnished between April 15th and the first of June. This water was taken from the Mokelumne river, and was turned into the Calaveras river at a point above the head of the Mormon slough, and flower clown that river to the lands of the defendants, so that they could use it for purposes of irrigation.

The court held that there was evidence sufficient to sustain the verdict for the plaintiff. The trial court charged the jury as follows: “This is an action brought by the plaintiffs against these defendants, wherein the plaintiffs allege themselves to be the owners of certain lands described in their complaint, and allege that the Mormon slough was a natural stream of water flowing through their lands. If you believe from the evidence that the Mormon slough was a natural stream of water, and that the

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