Hancock

This is an action to enjoin the appellants from diverting water from the South Fork of the American river at a point immediately above the dam of the respondent, and the principal question involved in the case may be stated as follows: If a prior appropriator of water constructs a dam across the bed of a stream for the purpose of raising its surface to a level which will cause it to flow into the head of his ditch, does he thereby acquire such an exclusive right in the bed and banks of the stream as far as the slack water extends above his dam that he can enjoin a subsequent appropriator of the surplus from tapping the stream, and diverting such surplus at any point above the dam and below the head of the slack water?

The decree of the superior court, from which the defendants appeal, cannot be sustained without affirming this proposition, as will clearly appear from a statement of the case.

The South Fork of the American river is a considerable stream heading in the high Sierras, and like other mountain streams varies greatly in volume from year to year, and from season to season. It reaches its lowest stage in each year towards the end of the dry season, and when the rains…

I dissent in toto, and adhere to the

former opinion in Department.

Paterson, J., concurring.—As I understand this case, and the principles involved, the plaintiff is entitled to water sufficient to fill its ditch to its capacity at the time of the contract with the Boyd’s Bar company in 1854, or to such increased capacity as it has acquired the right to fill by prescription or otherwise since that time, and when there is not sufficient water for this purpose may shut down the defendant’s gate until there is a sufficient supply.

The defendants are entitled at the proper point to draw from the surplus water—-that is, water which would flow over the dam after the plaintiff’s ditch is filled.

*60 In determining how, when, and where this surplus may be taken, all the circumstances of the case must be considered. The plaintiff is bound to use reasonable care in diverting sufficient water to fill its ditch so as not to occasion unnecessary waste of the surplus water. To do this it must raise its dam to a height sufficient to fill its ditch whenever the stage of the water renders it necessary to do so. That is to say, plaintiff is not entitled to a flow of eight or any other number of…