Natoma Water & Mining Co. v. Hancock

Citations

• 101 Cal. 42
• 35 P. 334
• 1894 Cal. LEXIS 984

Syllabus

<p>Water Bights—Appropriation—Tapping Pond op Prior Appropriator for Surplus Water—Injunction.—A prior appropriator of the water of a stream, who constructs a dam across the bed of the stream for the purpose of raising its surface to a level which will cause it to flow into his ditch, does not thereby acquire such an exclusive right in the bed and banks of the stream, as far as the slack water extends above his dam, in the form of a pond or pool, that he can enjoin a subsequent appropriator of the surplus water from tapping the stream and diverting the surplus at a point above the dam and below the head of the slack water in such pond or pool, if he does not interfere with the free use and enjoyment of the water right or the property of the prior appropriator.</p> <p>Id.-—Power to Drain Ditch.—The subsequent appropriator cannot be enjoined from appropriating the surplus water at a point above plaintiff’s dam merely because he thereby has the power to drain plaintiff’s ditch or canal, if he disclaims any such intention.</p> <p>Id.—Inconvenience to Prior Appropriator—Damn um Absque Injuria. The prior appropriator is bound to use reasonable care to avoid unnecessary waste of the surplus water appropriated by the subsequent appropriator, at a point above his dam, and the inconvenience caused by the lowering of his head of water by the diversion of the surplus, and by his being compelled to raise the crest of his dam earlier in the season, and to make it tight and efficient so as to prevent waste of surplus water, oftener than he had been accustomed to do, is damnum absque injuria.</p> <p>Id.—Enlargement of Ditch—Prescription—Adverse User—Acquiescence—Estoppel.—Where the rights claimed by subsequent appropriators of water above the dam of a prior appropriator have not been interfered with by the enlargement of the ditch of the prior appropriator, and the box used by the subsequent appropriator in diverting the water to which they were entitled was not closed after such e