McKinney v. Smith

Citations

• 21 Cal. 374

Syllabus

<p>The diversion of the waters of a stream with the object of drainage simply, or without the intention of applying them to some useful purpose, does not constitute an appropriation.</p> <p>The taking up of the waters of a stream for a special limited purpose is an appropriation of only so much of the water as is necessary for that particular purpose. The surplus may be the subject of a new appropriation, which will give to the second locator a paramount right to the use of all the waters of the stream not required for the specific purpose of the first appropriation.</p> <p>Plaintiffs constructed a dam across Clear Creek and dug a ditch for some distance along its bank, by means of which all the waters of the stream were diverted and returned to the creek at a point half a mile below. The object of the diversion was to drain the channel of the stream below the dam and supply water for working a tract of mining claims owned by plaintiffs in the bed of the stream. Subsequently defendants dug a ditch at a point above, through which they diverted the waters of the same stream for general mining purposes. Still later plaintiffs extended their ditch to other mining points and to agricultural land below, and used the water for mining and irrigating at these latter places. In an action by plaintiffs to recover for injuries occasioned by the diversion of defendants to the use of the water at the latter points to which plaintiffs’ ditch had been extended: Held, that the prior right of plaintiffs was limited to the use of the water for working their original claims in the bed of the stream; that as to the surplus above what wastirequired for that particular purpose, defendants’ right was paramount; and that plaintiffs could not recover.</p> <p>In an action involving the right to and extent of a water privilege claimed by plaintiffs under an alleged appropriation by a number of copartners, defendants, to limit the extent of the appropriation, offered in evidence a paper, purpor