I. There was no error in admitting the notice in evidence.
1. It was not necessary for the defendants to prove the execution of the notice, but only the fact of its having been posted up by the plaintiffs at their dam or ditch. It was material evidence as a fact indicative and declaratory of the purpose and intention of plaintiffs in constructing their dam and ditch. It makes no difference whether it was printed, or was signed by the plaintiffs or by others for them. It is enough to show that it was adopted by the plaintiffs and published by posting or recording. The question is, did the plaintiffs authorize the publication.
2. It was not necessary for the defendants to show that they had notice of the existence of the notice. The very ground upon which alone plaintiffs supposed prior right to the water can exist is, that their acts in appropriating it and applying it to use, were open and notorious, and that defendants were bound to know them. The notice to defendants of these acts is presumed in favor of plaintiffs, and is the very foundation of their claim. The posting of the notice is one of the acts to which that presumption applies.
The whole question then is, what was proved by those acts which defendants were bound to know. One of these acts was the posting of the notice.
The plaintiffs say their acts indicated an appropriation of the water for mining purposes. The defendants say they indicated an intention simply to divert the water. Upon this point the notice is significant and indeed conclusive proof. It gave character to all their other acts which might, otherwise, be construed either way.
The notice was not required to be specifically pleaded as an estoppel. It was one of the acts of plaintiffs connected with the taking of the water, and indicative of the purpose of the taking. it was no more required to be specially pleaded than the fact that the water was taken from Clear Creek by plaintiffs, carried to Slate Gulch, and there turned back into the creek, showing a diversion only, not an appropriation.
II. The Court did not err in any conclusion of law that the plaintiffs showed only " an appropriation to dispense with the water and not for use."
The conclusion of fact drawn by the Court (and this is a conclusion of fact, not of law) did not rest alone on the notice, though that was sufficient, but on the acts of plaintiffs in letting the water flow back into the creek.
There is no question in this case about the right of plaintiffs to alter the place of use of the water. It is a question only of the object of the appropriation. The finding is conclusive on that point. If objected to it would be found fully sustained by the evidence, not only by the notice but by the turningof the water back into the creek where it was flowing when Smith's right accrued.
From that fact he was authorized to draw his conclusion and to act upon it, as he did. Any subsequent appropriation of the water by plaintiffs to mining purposes would then be subject to Smith's prior right. The law of this case has been fully settled by this Court. (Conger v. Weaver , 6 Cal. 549; Maeris v. Bicknell , 7 Id. 261; Thompson v. Lee , 8 Id. 275; Kimball v. Gearhart , 12 Id. 27; Ortman v. Dixon , 13 Id. 33; Kelly v. Natoma Water Co. , 6 Id. 105.)
JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
NORTON, Judge
The appropriation of the water of a stream in order to apply it to some useful purpose secures a right which cannot be infringed upon by a subsequent appropriation of the water by others. But in the case of Maeris v. Bicknell (7 Cal. 261) it was decided that diverting the water from its natural channel for the purpose of drainage simply is not an appropriation of the water. And in the case of Ortman v. Dixon (13 Cal. 33) it was decided that the taking up of the water of a stream for a particular purpose--to wit: to run a mill--was an appropriation of only so much of the water as was necessary for that purpose, and did not secure a right to all the water at that point, if there was more than enough for that purpose, and that a person so appropriating the water for the special purpose could not afterwards appropriate the surplus to the detriment of other persons who had in the interim appropriated that surplus.
In this case the plaintiffs and those under whom they claim built a dam across Clear Creek and by means of a ditch conducted all the water of the stream into Slate Gulch, through which, as a natural channel, it flowed back into Clear Creek at a point some distance below the dam. After their works were completed they worked the bed of Clear Creek below the dam and above the mouth of Slate Gulch for mining purposes. Soon after the water was thus conducted into Slate Gulch, the defendants commenced a dam and ditches on Clear Creek, by means of which they appropriated the water for mining purposes at a point many miles above the plaintiffs' dam. After this the plaintiffs, by means of flumes and ditches, conducted the water from the point where it was first discharged into Slate Gulch across that gulch, and appropriated it to the use of mining and irrigating at points below Slate Gulch. The Court below found as a fact, that the turning the water from Clear Creek into Slate Gulch was a diversion to dispense with the water and not a diversion for appropriation. And as a conclusion of law, the Court decided that " defendants being the prior locators were entitled to the use of the water, and that plaintiffs cannot maintain an action for damages for the causes set forth in the complaint." The plaintiffs moved for a new trial, on the ground that the evidence was insufficient to justify the finding of facts upon which this conclusion is founded. The fact found upon which this conclusion rests is, that the turning of the water by the plaintiffs into Slate Gulch was a diversion to dispense with it and not to appropriate it.
The grievance stated in the complaint is the injury caused to the plaintiffs in their use of the water for mining and irrigating purposes below Slate Gulch. It does not appear in the complaint, nor is it urged on the argument, that the use of the water by the defendants has interfered with any use of the water by the plaintiffs at any point between their dam and Slate Gulch. Between these points the evidence shows and the Court finds that some use of the water by the Norwegians for mining purposes was made before the defendants began their works, and it was proved, also, that the water from the ditch was used to work the bed of the creek. The use of the water by the Norwegians to be taken from the ditch was provided for at the inception of the project, and its actual use by them and its use in working the bed of the creek, is conclusive that the water was in fact appropriated for use between the dam and Slate Gulch before the defendants' right accrued. The notice posted by the plaintiffs is, however, very explicit that their purpose in taking possession of the section or point on the creek was to build a dam " with the view of diverting and turning the water out of the bed of said stream at and below said dam, in order to facilitate the working and the more effectually enabling (them) to work the bed of said stream below said dam to the extent of four claims, subject to equitable regulations." It is not necessary to decide whether the terms of this notice are such as would estop the plaintiffs from claiming a right, as against subsequent appropriators, to the use of the water in their ditch so far as it was necessary to work the bed of the creek to the extent of four claims, because we think this notice, as well as all the other facts proved, establishes that at most the water was appropriated for a special and limited purpose--to wit: the working of the bed and banks of the creek below the dam to the extent of four claims or at the furthest to the mouth of Slate Gulch--and that hence, the Court below, under the rule cited from the case of Ortman v. Dixon, rightly decided that this action could not be maintained for damages for the causes set forth in the complaint, which were, as we have seen, for injury to the use of the water below Slate Gulch.
We are aware that in the case of Maeris v. Bicknell it was decided that a party who makes an appropriation of water can change the place of its use, as by an extension of the ditch, without losing his priority as against those whose rights have attached before the change, but the Court expressly reserved the expression of any opinion whether a party could change the use of the water from one purpose to another without losing its priority. In this case there was no general appropriation of the water by the plaintiff's before the defendants' rights attached. The direct object of their works was to drain the bed of Clear Creek at a certain point, and the ditch was necessarily of sufficient capacity to carry all the water in order to effect that object, and they may have had a prior right to the use of sufficient water to work the bed of the creek at that locality without thereby securing a prior right to all the water of the creek, to be used in some distinct and separate undertaking at any indefinite future period, in the same manner as a sufficient quantity might have been appropriated to run a mill without securing a right to the surplus to be afterwards applied to mining purposes. There may be difficulty in many cases in determining that the appropriation was limited to a special purpose or to a particular locality. Each case must be decided upon its peculiar facts. In this case the limited character of the right is distinct and clear, and it would be a serious restriction upon the valuable use of the means of carrying on mining in this State if an appropriation of the limited character proved in this case, assuming that there was such an appropriation, could have the effect to withdraw all the waters of such a creek from all other use for an indefinite period. On the facts, as they existed when the defendants began their works, they had the right to appropriate the water to any use that would not interfere with the plaintiffs' use of it for the special purpose to which they had then appropriated it.
No express distinction is made by the plaintiffs in their complaint or by the Court in its finding between the right of the plaintiffs to the use of so much water as might be necessary to work the bed of Clear Creek above Slate Gulch and their right to use the water for mining or irrigating purposes below Slate Gulch. But the plaintiffs allege that by their ditch they conducted the water on to mining grounds two miles below the dam, and the diagram shows the agricultural land to be still further below. It is for injury to the right to use the water at these localities that the complaint seeks redress. Slate Gulch is only half a mile below the dam. In its finding the Court says: " No survey was made for a ditch below Slate Gulch at that time (November, 1853) and for some time after, nor was any notice given, or tree blazed, or stakes set to mark such line. The water was discharged from their ditch into Slate Gulch, and through the natural channel of Slate Gulch found its way back to Clear Creek below the mining claims and notice of plaintiffs. This was clearly a diversion to dispense with the water and not a diversion for appropriation." And the conclusion of law, which is the matter particularly specified as the ground for asking a new trial, is, as before stated, that the " plaintiffs cannot maintain an action for damages for the causes set forth in the complaint ." It is clear that the question which was litigated by the parties and considered by the Court was, whether the plaintiffs had appropriated all the water of Clear Creek at the time they diverted it and discharged the bulk of it into Slate Gulch; and the finding of the Court is, in substance, that they had not appropriated that portion which was discharged into Slate Gulch, and in reference to which this action was brought. It is not requisite to order a new trial for the purpose of having the language of the finding made more exact, when it is sufficiently distinct as to the subject matter of the action.
The proof was sufficient to authorize the notice to be given in evidence as a part of the res gesta .
It was shown to have been prepared with the knowledge of some of the copartners, and seen by them as a posted notice; and that it was so posted as that, in the language of one of the witnesses, it " must have been seen" by the others.
We think the case was properly decided, and that the judgment should be affirmed.