I. Plaintiffs maintain that their appropriation of the entire water of the stream in 1853 or 1854 gives them the right to use all its water in any way, at any time and at any place, notwithstanding any intervening appropriation by others; that is, if a stream issuing from a mountain lake has a volume of water sufficient to turn one good mill with a moderate fall, has a courseof ten miles to its mouth, and within each mile has sufficient fall for a mill, and A builds a mill at the lowest fall near its mouth, whilst the balance of the stream is unappropriated; subsequently, B, C and others build mills on each mile of its course, commencing one mile above A, and extending up the stream to its source in the lake; after nine mills have been built above A--not in the slightest degree diminishing his supply of water--he has the right to go to the head of the stream, divert all its water, and leave the mills on the stream dry, simply because he first appropriated the water at its mouth. Such a proposition is absurd, and yet it is the result of plaintiffs' position. Plaintiffs first appropriated all the water of Saw Mill ravine. Until others made appropriations, of course they could change as often as they pleased. Even after others had made subordinate appropriations, they could change as often as they pleased, subject to the restriction, that the change must not be to the prejudice of the rights of others.
II. In considering plaintiffs' second point, the rights acquired by them in 1853-4 and those acquired in the Fall of 1858 must not be confounded. They located their lower dam in 1853, and commenced using it in January, 1854. In 1855, defendants' vendors located their dam about six hundred yards above plaintiffs' dam. In the Fall of 1858, plaintiffs located another dam, for other purposes, between their lower dam and the dam of defendants. The rights of the two parties under these respective locations are clearly expressed by the Court below: " The location in 1855 was subject to the conditions imposed upon the use of the water by the appropriation of 1853, and the location of 1858 was equally subject to the conditions imposed upon the use of the water by the appropriation made in 1855."
III. As to the ouster complained of, any citizen who is injured by a private nuisance may abate it, if he can do so without a breach of the peace. (2 Black. Com. 5, 6, and notes.) The improper diversion of water is a nuisance. (1 Id. 403, and notes; 2 Id. 218, and notes.)
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
COPE, Judge
This is an action for damages, and for the restitution of certain premises described in the complaint. The facts are clearly stated in the findings of the Court, and the conclusion arrived at is undoubtedly correct. The principal question is, whether a person appropriating and diverting the water of a stream at a given point, can afterwards change the point of diversion to the prejudice of a subsequent appropriator? The case of Kidd v. Laird, (15 Cal. 161) and the authorities there cited, are decisive of this question, and it would seem that the position of the appellants is based upon a misconception of the doctrine enunciated. They appear to regard the right to change the point of diversion as absolute and unqualified, whereas the rule is that the change must not injuriously affect the rights of others. This we expressly declared, and our views upon the subject have undergone no modification.
One of the grievances of which the plaintiffs complain is, that they were ejected from the possession of certain ground occupied by them for the purpose of constructing a dam and ditch. The object was to divert the water away from the defendants, and we think the plaintiffs have no right to complain of the means adopted to defeat this object. As against the defendants, the diversion would have been illegal, and we regard their action in the premises as a proper and legitimate mode of averting the injurious consequences.
Judgment affirmed.