Nevada Water Co. v. Powell

Citations

• 34 Cal. 109

Syllabus

<p>Appropriation op Water by Dam and Ditch.—Where the Court instructed the i jury, in substance, that if plaintiff acquired the prior right to divert a portion of the water of Shady Creek, by means of a dam and ditch, and the dam and stream should at any subsequent time, by reason of mining by strangers above, become filled up to such an extent as to make it necessary to raise the dam higher than it originally was to enable the plaintiff to continue the diversion by means of said ditch, then the plaintiff is entitled to make additions to the height of the dam from time to time, as occasion requires, without limitation, and wholly irrespective of the effect of these additions upon the interests of other parties acquiring rights for mining and other purposes on the stream above, subsequent to said original appropriation of the waters of the stream : held, that the principle on which such instruction is founded is inadmissible and the instruction erroneous.</p> <p>Idem.— Where plaintiff appropriated a portion of the waters of a stream, and diverted it by means of a dam and ditch, sufficient for the purpose in the natural condition of the stream as it then existed, it does not necessarily follow that he thereby acquires the right to raise his dam higher and higher, as occasion might require, to obviate obstructions to its use in the manner of its said original appropriation, occasioned by physical changes in the condition of the stream not anticipated, whether arising from natural or artificial causes.</p> <p>Idem. — The question, what is the extent of the right originally acquired by plaintiff in such a caso to which all subsequently acquired rights must be subordinate, 5s one of fact, for the jury.</p> <p>Idem.—If the plaintiff appropriated a portion of the waters of a stream, and constructed a ditch and dam, amply sufficient, under the conditions of the stream and the country as they then existed, to make the appropriation available, and thereby acquired the right to