Being riparian proprietors, the defendants were entitled to use the water in a reasonable manner for irrigating their respective lands. This is admitted to be the law by appellant in his brief, and has been placed beyond controversy by a long line of decisions and authorities, such as Angell on Water Courses, § 122; Goddard on Easements, p. 301; Perkins v. Dow, 1 Root, 535; Wood on Nuisance, p. 319.
The question of reasonable use is a question of fact for the jury. ( Ferrea v. Knipe, 28 Cal. 343; Springfield v. Harris, 4 Allen, 496; Heath v. Williams, 43 Am. Dec. 269, n.)
This being a question of fact for the jury, their verdict is conclusive upon that point.
It was not error for the court to give the sixth instruction. ( Perkins v. Dow, 1 Root, 535; Hayward v. Mason, 2 Swift, Syst. 87; Weston v. Alden, 8 Mass. 136; and authorities heretofore cited.)
OPINION THE COURT.
This is a water contest between two riparian proprietors. The court below instructed the jury that if they believed from the evidence that the defendants were riparian proprietors, and used the waters of the stream for the purpose of irrigating their lands, and used no more than was necessary for that purpose, and returned the surplus water after such use into the channel, then they should return a verdict for the defendants. This was error, for by it the jury was in effect told that the defendants were entitled to divert and use all of the water of the stream, if necessary for the irrigation of their lands, without regard to the wants or necessities of the other riparian proprietor.
Judgment and order reversed and cause remanded for a new trial.