Smith v. Williams

Appeal by defendant Templey from the judgment, and an order denying a new trial. The action was to enjoin defendants from diverting water from a small stream in Siskiyou county, known as “Ditch Creek, ’’ and for damages for such diversion. Plaintiff’s claim was the exclusive right by prior appropriation to the waters of the stream, to the extent of six hundred inches, measured under a four-inch pressure, “when there is that quantity therein; and, when there is not such quantity, then all of the waters” of the stream “which rise or flow therein or thereinto between the point where the present ditch of the Blue Gravel Mining Company taps said creek, and a point about two miles below, on the line of said creek, where the present lower ditch of plaintiff taps said creek.”. He averred a wrongful diversion by defendants of fifty inches of the water at a time when there was less water in the stream than the maximum quantity to which he was entitled, to his damage in the sum of $350. Defendant Templey set up the right in himself by appropriation to “about twenty inches” of the water of the stream, and denied the diversion of any water belonging to the plaintiff, or any damage. The court…

I dissent. Plaintiff claims exclusive right by appropriation to six hundred inches of water, or, when there is not that quantity, then to all the water in the creek, between two designated points on the creek. He avers that he now is, and for twenty years last past has been, the owner of, and entitled to the exclusive use of, said water. He charges that defendants forcibly took possession of one of his ditches June 15, 1893, and diverted, and continue to divert, fifty inches of water, to his damage in the sum of $300, and that they threaten to continue such diversion. Templey denied all the material allegations of the complaint, and set up a right in himself, by appropriation, to twenty inches of water, “being seepage water from a ditch taking all the waters of Ditch creek, in Cottonwood mining district, and extending from Ditch Creek to the ‘Blue Gravel Mining Claim,’ so called.” Plaintiff testified at the trial that he *197 owned five ditches by which water was taken from Ditch creek, and in 1878 he put upon record a notice describing his several claims to water. He also testified to the use of water from these various ditches down to the year 1892. In the notice, posted and…