extent of the use is, whether it is to the injury of the other proprietors or not. There may be a diminution in quantity, or a retardation or acceleration of the natural current indispensable for the general and valuable use of the water, perfectly consistent with the existence of the common right. The diminution, retardation, or acceleration, not positively and sensibly injurious by diminishing the value of the common right, is an implied element in the right of using the stream at all. The law here, as in many other cases, acts with a reasonable reference to public convenience and general good, and it is not betrayed into a narrow strictness, subversive of common sense, nor into an extravagant looseness, which would destroy private rights. The maxim is applied, "Sic utere tuo, ut non alienum lædas."

But of a thing, common by nature, there may be an appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy, where the first occupant takes by force of his priority of occupancy. That supposes no ownership already existing, and no right to the use already acquired. But our law annexes to the riparian proprietors the right to the use in common, as an incident to the land; and whoever seeks to found an exclusive use must establish a rightful appropriation in some manner known and admitted by the law. Now, this may be, either by a grant from all the proprietors, whose interest is affected by the particular appropriation, or by a long exclusive enjoyment, without interruption, which affords a just presumption of right. By our law, upon principles of public convenience, the term of twenty years of exclusive uninterrupted enjoyment has been held a conclusive presumption of a grant or right. . . .

These are the general principles, which appear to me applicable to the present case. They will be found recognized in many cases; but are in none more fully and accurately weighed and discussed than in Bealey v. Shaw, 6 East, 208; Williams v. Moreland, 2 Barn. & C. 910; and Wright v. Howard, 1 Sim. & S. 190,- in England; and in Ingraham v. Hutchinson, 2 Conn. 584; Merritt v. Parker, 1 Coxe [1 N. J. Law], 460; Palmer v. Mulligan, 3 Caines, 307; Platt v. Johnson, 15 Johns. 213; and Merritt v. Brinkerhoff, 17 Johns. 306,-in America. With these principles in view, the general rights of the plaintiff's cannot admit of much controversy. They are riparian proprietors, and, as such, are entitled to the natural flow of the river without diminution to their injury. As owners of the lower dam, and the mills connected therewith, they have no rights beyond those of any other persons, who might have appropriated that portion of the stream to the use of their mills. That is, their rights are to be measured by the extent of their actual appropriation and use of the water for a period, which the law deems a conclusive presumption in favor of rights of this nature. their character as mill-owners, they have no title to the flow of the stream beyond the water actually and legally appropriated to the mills;

In

but in their character as riparian proprietors, they have annexed to their lands the general flow of the river, so far as it has not been already acquired by some prior and legally operative appropriation. No doubt, then, can exist as to the right of the plaintiffs to the surplus of the natural flow of the stream not yet appropriated. Their rights, as riparian proprietors, are general; and it is incumbent on the parties, who seek to narrow these rights, to establish by competent proofs their own title to divert and use the stream.

And this leads me to the consideration of the nature and extent of the rights of the trench owners.

In this view of the matter, the proprietors of Sergeant's trench are entitled to the use of so much of the water of the river as has been accustomed to flow through that trench to and from their mills (whether actually used or necessary for the same mills or not), during the twenty years last before the institution of this suit, subject only to such qualifications and limitations, as have been acknowledged or rightfully exercised by the plaintiffs as riparian proprietors, or as owners of the lower mill-dam, during that period. But here their right stops; they have no right farther to appropriate any surplus water not already used by the riparian proprietors, upon the notion, that such water is open to the first occupiers. That surplus is the inheritance of the riparian proprietors, and not open to occupancy.

The question, then, resolves itself into a matter of fact: What has been the quantity accustomed to flow in the trench, and what the qualifications and limitations accompanying the flow during this period?...

It is impracticable for the Court to do more, in this posture of the case, than to refer it to a master to ascertain, as near as may be, and in conformity with the suggestions in the opinion of the Court, the quantity to which the trench owners are entitled, and to report a suitable mode and arrangement permanently to regulate and adjust the flow of the water, so as to preserve the rights of all parties.

In respect to the question of damages for any excess of the use of the water by the trench owners, beyond their right, within six years next before the filing of the bill, I have not thought it my duty to go into a consideration of the evidence. It is a fit subject, either for reference to a master, or for an issue of quantum damnificatus, if either party shall desire it.

The decree of the Court is to be drawn up accordingly; and all further directions are reserved to the further hearing upon the master's report, &c. Decree accordingly.

246. WEBB v. PORTLAND MANUFACTURING COMPANY CIRCUIT COURT OF THE UNITED STATES. 1838

3 Sumner 189, Fed. Cas. No. 17322

[Printed ante, as No. 20.]

247. RENO SMELTING, MILLING & REDUCTION WORKS v. STEVENSON

SUPREME COURT OF NEVADA. 1889

20 Nev. 269

APPEAL from the District Court of the State of Nevada, Washoe County. R. R. Bigelow, District Judge. The facts are sufficiently stated in the opinion.

John F. Alexander, Attorney General, Robert H. Lindsay and Thomas H. Wells, for appellants.

I. The judgment and decree rendered herein should be reversed. It is not supported by the allegations of the complaint. The complaint bases plaintiff's right to recover in any event, either upon its legal or equitable cause of action upon a prior appropriation of the waters of the Truckee River, and there is no allegation in said complaint which justifies a decree based upon riparian ownership. . . . II. The quantity of water to which the appropriator is entitled is measured by his means of appropriation, as applied to the natural existing state of the stream, and the configuration of the ground through and over which it runs. III. The common law of England must be understood as having been adopted only in cases where it is applicable to the habits and conditions of our society, and in harmony with the genius, spirit and objects of our institutions. IV. We base our argument on the right to make a reasonable use of water without damage to either party. Plaintiffs are appropriators, and their act shows that in this case to confine them to the rights riparian would prevent beneficial use by them of the water needed at their works.

R. S. Mesick, for respondent.

I. The findings of fact made and conclusions drawn by the District Court and the judgment entered are fully supported by the pleadings in the case. As against a mere intruder it is sufficient for a plaintiff to allege mere possession under claim of right. (Ang. Wat. Cour. Sec. 407.) The defendants are mere intruders. . . . IV. Appellants asseverate that, notwithstanding the words of the statute book of the State and the decisions of this Court to the contrary, the common law of England does not prevail in the State of Nevada in reference to the subject of water rights, but that the subject had, by some process, passed under the dominion of something called the common law of the Pacific Coast. Just what appellants mean by the phrase common law of the Pacific Coast, they have not made clear. But we are prepared to maintain that there is no law to be found upon the statute books of either the United States or of any State, nor any decision of their Courts, which lends any support whatsoever to the idea that the owner of a fee simple title to land, through which flows a stream of water not appropriated while the land was part of the public domain, is lawfully subject,

except by the right of eminent domain or his own fault, to the loss of any portion of that stream upon his own land and against his will, whether he have immediate use for it or not. (Heath v. Williams, 25 Me. 209; 43 Am. Dec. 279-80; Const. of Nevada, Art. XVII, Sec. 2; Vansickle v. Haines, 7 Nev. 249.)

By the Court, BELKNAP, J.:

This action is brought for the purpose of determining rights to the use of water upon the following facts: The plaintiff is a corporation engaged in the reduction of ores. It is the owner in fee of ten acres of land on the Truckee River, upon which its reduction works are situated. Long prior to the commission of the grievances alleged in the complaint, it built a dam in the river at a point above its own land, but with the consent of those whose lands were affected thereby. The water is used to furnish power to operate machinery at the works, and is conveyed from the dam by means of a ditch and flume. The height of the dam is such that the waters of the river flow over it about ten inches above its crest, and, unless the water is maintained at this height, sufficient cannot be diverted to fill the ditch and flume. The State of Nevada is the owner in fee of the land next below that of the plaintiff on the river. The insane asylum of the State is situated thereon, and the defendants, by virtue of their offices of governor, controller, and treasurer of the State, respectively, are commissioners for the care of the insane, and, as such, control the affairs of the asylum. In their capacity as commissioners they have caused the pond of water made by the dam of the plaintiff to be tapped by a flume, and thereby carried a portion of the waters to the asylum grounds for motive power. The District Court enjoined this diversion of the waters. Plaintiff upon this appeal neither claims nor disclaims a right by virtue of a prior appropriation, but urges an affirmance of the judgment upon the sole ground that it is a riparian proprietor, and, as such, is entitled to the natural flow of the water through its land.

The rights of riparian proprietors are thus stated by Chancellor Kent: "Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands as it was wont to run, (currere solebat,) without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. 'Aqua currit et debet currere ut currere solebat,' is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot reasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant, or an uninterrupted enjoyment of twenty years, which is evidence of it." (3 Kent Comm. 439.)

"It is wholly immaterial," says Judge Story, in Tyler v. Wilkinson, 4 Mason, 400,

"whether the party be a proprietor above or below, in the course of the river. The right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current flow to a proprietor below, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all the proprietors of that which is common to all."

But the rule of the common law has never been applied by the Courts of this State, except as hereinafter mentioned. The condition of settlers upon the public lands of the State necessitated a diversion of running waters from their natural channels for agricultural purposes, and our Courts have, with the exception stated, protected the first appropriator to the extent of his appropriation to any beneficial use, and no obligation has been imposed upon him to return the water to its natural channel. The history of this subject is clearly stated by Mr. Justice Field, in Atchison v. Peterson, 20 Wall. 510, as follows:

"By the custom which has obtained among miners in the Pacific States and Territories, where mining for precious metals is had on the public lands of the United States, the first appropriator of mines, whether in placers, veins, or lodes, or of waters in the streams on such lands for mining purposes is held to have a better right than others to work the mines or use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purpose, is regarded, except as against the government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law, declaratory of the rights of riparian owners, were, at an early day, after the discovery of gold, found to be inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection."

Referring to the rule as above stated, and which accords to the different riparian proprietors an equal right to the use of the waters of the stream, the opinion proceeds:

"This equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common-law doctrine of riparian proprietorship with respect to the waters of those streams. The government, by its silent acquiescence, assented to the general occupation of the public lands for mining, and, to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale, and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific States and Territories by their customs, usages, and regulations everywhere recognized the inherent