Kidd v. Laird

Citations

• 15 Cal. 161

Syllabus

<p>A statement on motion for new trial signed by the Judge, and appearing, from the minutes of the Court, to have been used on the hearing of the motion, is sufficiently authenticated. The statute points out no mode of authentication, and any satisfactory evidence in the record, in some legitimate and proper form, that, the statement has been examined and approved by the Judge, is sufficient.</p> <p>Running water, so long as it continues to flow in its natural course, cannot be made the subject of private ownership. A right may be acquired to its use, which will be regarded and protected as property, but this right carries with it no specific property in the water itself.</p> <p>The owner of a ditch has the exclusive and absolute power of control, and right of enjoyment, of the water diverted by and flowing in his ditch, but whether such water be his private property, it is not necessary to decide.</p> <p>A person entitled to divert a given quantity of the water of a stream, may take the same at any point on the stream, and may change the point of diversion at pleasure, if the rights of others be not injuriously affected by the change.</p> <p>This right so to change the point of diversion does not depend upon how the right to the use of the water was acquired, whether by express grant or by prescription ; or whether it rests in the parol license, or the presumed consent of the proprietor. The difference as to the source of the right relates to the mode of determining its existence and extent, and not to the manner of its exercise and enjoyment.</p> <p>In this case, the rights of both parties, as fixed by the priority and extent of their respective appropriations, though not founded on the legal title, are as perfect and absolute as if acquired by prescription, or express grant from the riparian owner.</p> <p>Where there are several separate defenses, each of which is sufficient to defeat the action, and these defenses are submitted to the jury, with evidence in supp