Davis v. Gale

Citations

• 32 Cal. 26

Syllabus

<p>Prior Right to Water by Appropriation.—A person who has appropriated the water of a stream, and caused it to flow to a particular place by means of a ditch, for a special use, may afterwards change the use to which he first applied the water, and the place at which he used it, without losing his priority of right, as against one who has dug a ditch from the same stream before the change is made.</p> <p>Idem.—One who has appropriated the water of a stream by means of a ditch for the purpose of working a particular mining claim, may, after he has worked out the claim and abandoned the same, extend his ditch and use the water at other points, and for a different purpose, without losing his priority of right as against one who afterwards dug a ditch from the same stream and appropriated water before the claim was worked out.</p> <p>Right to Water.—Appropriation and use for a beneficial purpose are the tests of right to water in the mineral regions, while the place and character of its use are not such tests.</p> <p>Abandonment of Water Right.—The facts that water was appropriated for a particular purpose, and that the purpose has been fully accomplished, and that when accomplished the appropriators dispersed and allowed a long time to elapse without using the ditch, and then sold it for a nominal sum, may be received in evidence as tending to show abandonment.</p> <p>Idem.—One who has abandoned his prior right to the use of water cannot by afterwards making a sale of the same revive his prior right in favor of his grantees, even if the sale is made in good faith.</p> <p>Statute of Limitations as to Water.—If one who has the prior right to the use of water permits another to acquire and hold for five years continuous adverse possession of the same, or any part thereof, he loses his right to the same or that part thereof which the adverse possessor enjoyed.</p> <p>Turning Water into Stream without intending to Recapture it.—If two persons, one prior in point of time to