The evidence shows that the water collected by plaintiffs' dam, escaped, and was not discharged from the defendants' dam. It was not water turned by them into Alder Creek below their first dams voluntarily, and for the purpose of collecting or using it lower down.
The finding of the Court below establishes the fact, that the defendants at the time of the erection of plaintiffs' dam, had not appropriated the bed of the creek between the dams of the two parties; it was, therefore, open to appropriation, and was appropriated by the plaintiffs for the collection of water in their dam.
The defendants are not the owners of water by them allowed to escape into a natural water course. The right to water is not absolute, but only usufructuary, and only continues with possession. (Angell on W. C. 86, secs. 94, 95; Eddy v. Simpson , 3 Cal. R. 252.)
The water having found its way into a natural channel, was appropriated by plaintiffs, and the erection of the last dam by defendants, one hundred yards above that of plaintiffs, was an infringement of plaintiffs' rights, and ought to be abated.
The notice given by defendants was the assertion of a claim having no legal sanction, viz.: an absolute right to the corpus of the water, and a consequent right to retake possession whenever they found it. Such a notice created no liability.
The first dams erected by defendants, appropriated, we admit, all water flowing naturally or artificially into the stream above the dam, but could give no right to the use of water below it. They might change itslocation, if it could be done without injury to the rights of others. Here the plaintiffs' rights intervened, and were injured by the erection of a dam lower down, and just above their own.
We do not deny defendants' right to keep possession of all water brought by them in their own canals, provided that in devising means to keep this possession, they do not infringe on the rights of others. In this case they have infringed upon our right to the use of water found running in the creek. Their right being only usufructuary, was lost when the water found its way back into natural channels, and we acquired a right to it, upon which they have trespassed. This case is identical in principle with Eddy v. Simpson .
There is nothing in the record to show an intention on the part of defendants at the commencement of their works, to appropriate Alder Creek for the purpose of conducting water, and if there were, a mere intention is insufficient. An actual appropriation could only give the right contended for.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray and Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray and Mr. Justice Terry concurred.
Possession, or actual appropriation, must be the test of priority in all claims to the use of water, whenever such claims are not dependent upon the ownership of the land through which the water flows.
Such appropriation cannot be constructive, because there would be no rule to limit or control it, resting, as it must, only in intention. The principle, as laid down in Eddy v. Simpson , 3 Cal. R. 249, must govern this case.
The design of the defendants, two years before, to appropriate Alder Creek as a connecting link of their enterprise, could not give them exclusive rights until it was executed, because it is not the intention to possess, but the actual possession, which gives the right. And so in the case of Stark v. Barnes , 4 Cal. 412, cited by appellants, the doctrine of relation, as between the acts of the plaintiff, first and last, was simply applied to the thing possessed, and not to the intention of possessing.
The purchase by the defendants, of Walker's dam, was an actual appropriation of the waters of the creek so far, but no further; and until they built a dam below, in order to make a further appropriation, any one else had the right to do so. If they had commenced first to build the dam in good faith, then, although their power of enjoyment would not commence until its completion, yet the right, as against others, would bear relation to the time of commencement; and this is all that the principle in Stark v. Barnes amounts to.
Judgment affirmed.