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ditch from Desselles & Connell, are practical- | again changed the place of its use, and carly worked out, so that they are unfit for prof- ried a portion of it beyond the head of plainitable mining. George Simmons says, in ef- tiff's ditch, where it was entirely lost to fect, Scotch gulch is mined out,-the most of them. In this plaintiffs claim they are init. There are no mines there to amount to juriously affected, and that defendants are anything. There is one man there now work- without lawful authority for so doing. The ing with a pick and shovel. This was the question as to whether or not plaintiffs are, probable condition of these mines at the date in legal contemplation, so injuriously affectof defendants' purchase in 1891, as it does ed, is involved in the consideration of the not appear that they have ever been worked right of defendants to change the place of by them since they became the owners there- use. If they had such right, then no injury of. We deduce from this the defendants' in- can result to the plaintiffs by reason of the tentions at the time of the purchase. It was change of which they can justly complain. not to work the mine at Scotch gulch, but to Burnett, J., in Maeris v. Bicknell, 7 Cal. 203, carry the water beyond, to the extent of the says: “The next question that arises in this capacity of the old ditch, for use at such case is whether a party who makes a prior points as might be convenient. The evidence appropriation of water can change the place on this point is quite meager, and we can on- of its use, without losing that priority as ly judge of the intended use by that which against those whose rights have attached bethey are now making of it. George Simmons fore the change. This question, we think, says they are using a little for mining pur- can admit of but one answer. It would seem poses at their mine, probably 50 inches, and clear that a mere change in the use of the some for irrigating grass and cultivated water from one mining locality to another crops; that they "turned some of it down the by the extension of the ditch, or by the conriver to the ranch; that Wimers ought to struction of branches of the same ditch. have turned the water out to irrigate," and would by no means atfect the prior right of "run a little water down to Decker." He al- the party. It would destroy the utility of so says they have valuable mining property, such works were any other rule adopted." that it will take a number of years to work In Davis v. Gale, 32 Cal. 33, the court say: out. So that the use which defendants are “Suppose a party taps a stream of water for making of the water is not dissimilar to that the purpose of surface mining in a given lowhich Desselles & Connell made of it prior to cality, and afterwards finds that the ground 1877 beyond Scotch gulch, except that defend- will not pay, or that ground further on will ants appear to be employing the same for pay better, may he not abandon the former, mining and irrigation on their own account, and extend his ditch to the latter, without while Desselles & Connell sold to third parties losing his priority ? Or suppose, after workfor like uses and purposes. No question is ing off the surface, he finds quartz, may he made but that a valid appropriation prior to not erect a mill, and convert the water into that of plaintiff's was made by the predeces- a motive power, without forfeiting his prior sors of defendants of the water of the said right?

We think all this may be east fork for use at Scotch gulch for mining | done, and are unable to suggest a plausible purposes, and that the relative position and reason why it may not. In cases like the rights of the parties continued unchanged to present a party acquires a right to a given the year 1977. The contention that defend- quantity of water by appropriation and use, ants' predecessors abandoned their ditch be- and he loses that right by nonuse and abanlow Scotch gulch in that year, by allowing it donment. Appropriation, use, and nonuse are to become obstructed, and to fall into disuse the tests of his right, and place of use and at that time, presupposes this state of facts, character of use are not. When he has made as there can be no abandonment unless such his appropriation, he becomes entitled to the right or privilege existed in some person or use of the quantity which he has appropersons who could waive its benefits.

priated at any place where he may choose to A valid appropriation having once been convey it, and for any useful and beneficial made of the water of a stream, it becomes a purpose to which he may choose to apply it. pertinent inquiry whether it is permissible Any other rule would lead to endless complito change the place of its use. Undoubtedly cations, and most materially impair the value there could be no objection to such change of water rights and privileges." See, also, where it does not injuriously atfect third par- Woolman v. Garringer, 1 Mont. 5:35; Kin. ties. The predecessors of defendants, prior Irr. $ 233. The nature of the use for which to 1877, used a portion of the water appro- water is appropriated operates as notice to priated by them beyond Scotch gulch. From subsequent appropriators whether the place 1877 to 1891 this water was used at Scotch of use may or may not be changed. If the gulch, and allowed to flow into the river purposes for which it is to be applied have again at a point above the head of plaintiffs' the effect to eliminate it from existence, abditch, so that they secured the use of the sur- sorb it, use it up absolutely, then it can make plus after use by defendants' predecessors no kind of difference to subsequent approior mining purposes. In 1891, the defend- priators in what locality it may be utilized. ants, having succeeded to the rights of their Of such nature is the appropriation of water predecessors in their appropriation of water, for irrigation purposes. Beatty, J., in Last

Chance Min. Co. v. Bunker Hill & S. Mining or desertion of it, and operates as a relin & Concentrating Co., 49 Fed. 432, says: quishment thereof. There can be no aban“The appropriation of water for placer min- donment without some action of the will ing purposes at some specified place involves and an intent to abandon, but such intent a somewhat similar principle. It is such an may be inferred from the acts and declaraactual appropriation of a definite amount, tions of the party against whom the relinand for such purposes, as, in the nature of quishment is claimed. Time is not, howevthings, must operate as a notice to all that er, an essential element of abandonment. its place of use must, from time to time, is The moment the intention to abandon and the ground is worked, be changed. Should the relinquishment of possession unite, the one use the water after it passes from the abandonment is complete. Mallett v. Minworks of the prior claimant, he must do so ing Co., 1 Nev. 204; Dodge v. Marden, 7 Or. at his own risk, and he cannot complain that 460. As we have seen, Desselles & Connell changes are made which he had full notice carried through their ditch beyond Scotch would likely occur." See, also, Lowden v. gulch, prior to 1877, some 350 or 400 inches Frey, 67 Cal. 474, 8 Pac. 31; Bullard v. of water, which, to the extent of 350 inches, Stone, 67 Cal. 477, 8 Pac. 17; Ramelli v. was actually used for mining and irrigation Irish (Cal.) 31 Pac. 41. A case very much in purposes. By this use it is admitted by point is that of Meagher v. Hardenbrook plaintiffs that they acquired a perfect and (Mont.) 28 Pac. 451. The survey of the subsisting right, prior and superior to any "Miners' ditch” was commenced in the latter right of theirs to the use of the water of part of the year 1809. It was built and said stream. But it is claimed that Desselles owned jointly by 24 persons, each being rep- & Connell abandoned their right to flow resented by a share. At the time of the com- water beyond Scotch gulch in 1877, and that mencement of the action the defendants Har- plaintiffs' subsequent appropriation thereof denbrook and Kelly were the owners of eight gives them a right superior to defendants',and three shares respectively. The owners and that no right exists at this time, for of the ditch were at the same time owners of these reasons, in the defendants, to the use certain placer mines in three different gulch- | of any part of the water of said stream at es. In the summer of 1871 the water was any point below Scotch gulch, whereby its turned in as far as Prairie and Spring use would be lost to plaintiffs. The evigulches, and a year later into Antelope dence is clear that the ditch was filled up gulch. Miners' ditch was abandoned in 1886, in 1877 for the space of two or three hunsince which time none of its waters had dred feet at Allen gulch by the tailings and been used for placer mining, but were turned debris from William Bybee's mine. Desinto Race Track creek, and recaptured by selles & Connell gave permission for this to Hardenbrook, and used, for the purpose of be done, but with the express understandirrigating land belonging to him, to the ex- ing that Bybee should open it out again when tent of 400 inches. It was held by the court called upon to do so. True, they never that all the waters of Miners' ditch were called upon Bybee to clean it out, but there abandoned in 1886, except the 400 inches is no intention manifest on their part to used by Hardenbrook, and to that extent they abandon this ditch at that time. The transwere not. It was taken for granted by both action would indicate an intention quite to the counsel and the court that the place of the contrary. If not abandoned at that use could be changed, and the court went fur- time, was it abandoned later? James W. ther, and held that the mode and manner of Wimer, a brother of plaintiffs, testifies: "My use could also be changed. The doctrine that father made them [Desselles & Connell] a a prior appropriator for the purposes of ir- proposition to repair the ditch, and to furrigation may change the place of its use is nish water, and they refused to do so." W. recognized by this court in Cole v. Logan, 24 J. Wimer, one of the plaintiffs, testifying to Or. 304, 313, 33 Pac. 568. We take it, then, the same conversation, says: "Father wantthat where the appropriation is made for the ed to have water to irrigate at Waldo his purposes of placer mining and irrigation, and orchard, and he bought the orchard of Mr. the water thus appropriated has been actual- Simmons,-quite a fine orchard,-and he ly used for those purposes for a term of years, wanted to 'irrigate it. People said it as in this case, the place of its use may be wouldn't live unless he did, and the town changed at the pleasure of the owners and was dry, and he proposed to try to get the possessors of the right, and that plaintiffs water from Scotch gulch, from defendants' cannot be heard to complain on that account. ditch, being the only chance to get it; so he The defendants, therefore, had the right to approached them about rebuilding the ditch, change the place of the use in 1891 from and we talked it over in the store a numScotch gulch to such point or points beyond ber of times, both Mr. Desselles and Mr. as they could make the water available for Connell and father and myself. I think, mining and irrigation purposes, unless, as is though, father done nearly all the talking. claimed by plaintiffs, the right to flow water And they asked us, in reply to our quespast Scotch gulch was abandoned by defend- tion whether they would bring the water in ants' predecessors in 1877.

there or not.-they asked us one hundred An abandonment of a right is a forsaking dollars per year. They said they would do

it for one hundred dollars a year, if we the spring of 1891. I asked him if he had would rebuild the ditch. They said they ever abandoned any part of that ditch or would sell us the water for one hundred dol- any branch of it, or any part of it, and he lars a year.

* But they stated there, said he had not.” And to interrogatory 9, in my presence,-and I talked with them my- “State whether or not you abandoned any self,--they stated there was nothing in it part of said ditch below Scotch gulch," J. to rebuild the ditch, and I remarked that it B. Desselles answered, “We did not." Inwas pretty steep for a man to rebuild the terrogatory 10: “Did you or did you not exditch and to have to give $100 for the water, ercise acts of ownership over said ditch, and they said it was worth $100 for the through its entire length, until you sold it water, and there was nothing in it for them to Simmons & Co., in 1891?” Answer: "We to rebuild the ditch; and that is what they did, with the exception of nine months." said, and they wasn't going to rebuild the Cross-interrogatory 17: “What act of ownditch.” This was in 1877, but after the ership did you exercise over said ditch beScotch gulch ditch was filled up, and before yond Scotch gulch, after you acquired it?” witness first became interested in plaintiffs' Answer: “We claimed it was our own. said ditch and mine. The witness, continu- We protected the ditch, and tried to keep ing, says: "In answering that.question, I the people from destroying it; and we redon't wish to be understood, in order to fused at one time to sell that part of the make my evidence look big- I don't say ditch from Scotch gulch to Waldo." This that they said the ditch would not be ex- latter answer is corroborated by another wittended. I don't mean to say they said they ness, who says that Desselles refused to sell never would do it. I mean to say that they the lower part of tbe ditch unless he could repudiated or rejected our proposition.” T. sell the whole. The nine months mentioned A. Jackson's testimony is to the same pur- in Desselles' testimony in which he and Conport, but he thinks the conversation occurred nell failed to exercise ownership in the in 1880. James Spence testifies: “I en- ditch refers to the period during which deavored at one time to buy water. Spoke George Simmons was in possession, under to Mr. Connell. I had a mining claim on contract for purchase. From all this we are what is called "Sailor Gulch.' I spoke to to gather the intention of Desselles & ConMr. Connell. Told him I had a claim on nell with reference to an abandonment by Sailor gulch, and I would like to buy water them in 1877 of their right to carry water of him, if he would sell me any. He remark- beyond Scotch gulch. The part of their ed that it would take more money to fix up ditch used for this purpose undoubtedly fell the ditch than there was in my ground, and into disuse at that time, and was allowed by his remarks were to the effect that he them to continue so until 1831, when they wouldn't do it.” This was in 1878 or 1879. sold to defendants. The water, however, diThe witness wanted about 50 inches of wa- verted from the said east fork by means of ter, to work a small piece of ground. Sailor their ditch was used by them during nearly gulch is about 242 miles, by the ditch, below the whole of this time for mining purposes Scotch gulch. Daniel Hunt testifies: “I at Scotch gulch. So that, while a portion of don't remember whether they said anything the ditch fell into disuse, the water was acparticularly about it or not, but I have tually employed for a beneficial and useful heard Connell speak frequently about their purpose.

Whatever might have been the water. They always thought their water presumption arising by reason of the nonwould work Fry gulch, and was the only use of the water for this great length of water that would work Fry gulch. The time, it cannot prevail here, because the waother ditch is a good deal lower, and ter itself was utilized; and, as we have seen, wouldn't have the pressure, and he has Desselles & Connell had a perfect right always talked more or less about it. I nev- to change the place of its use. Thus it is er paid particular attention to it.” In an- demonstrated without further reasoning swer to question 1,022, "Did you have any that the right to the use of the water was not talk with Desselles & Connell upon the abandoned by them. Aside from this consubject of taking the water around to Fry sideration, the fact that Desselles & Connell gulch ?” George Simmons says, “I have heard arranged with Bybee for opening up their them speak about taking the water around ditch again before they allowed it to be there”; and to the question 1,023, "What closed; that they, from time to time, endid they say about it?” he answers, "They tertained and considered propositions from were talking about Fry gulch being min- different persons for opening out this ditch, ing ground, and they said they thought that and the employment of the same for conwhen they got through with Scotch gulch veying water to different points below they would take it down there." William Scotch gulch; that they refused to sell this Darkis testifies: "I heard Jim Connell say part of the ditch without the whole; and that when they worked out their claim the that they contemplated using the water ditches could be run to town (Waldo), and through this ditch at Fry's gulch when they could sell them there,-work the John- their mines were worked out at Scotch son's ranch.” T. Cameron, one of defend- gulch,-all tend to show that there was an ants, testifies: “He [Desselles] said it was in entire absence during all these years of any

intention on the part of Desselles & Connell fendants at Scotch gulch, there is no questo abandon their right to the use of the wa- tion. But such use was not adverse to the ter diverted by means of their ditch below right of defendants. Neither their rights nor Scotch gulch. Hence there was no aban- those of their predecessors were invaded donment by Desselles & Connell of the ditch thereby. At no time could Desselles & Conbelow Scotch gulch or of the water thereof nell have maintained an action against the in 1877. The claim of plaintiffs is, in effect, | plaintiffs by reason of their appropriation of that Desselles & Connell abandoned a more the water that was allowed to escape after general appropriation for a particular one,- use down the main channel of the said east that of placer mining at Scotch gulch,-and fork above the head of plaintiffs' ditch. The that, since such was the case, they were use by plaintiffs was, during the whole of this powerless to again resume their original ap- time, simply by the permission and indul. propriation to the injury of plaintiffs. The gence, or rather at the sufferance, of Deslogical result of this contention, if success- selles & Connell. These conditions could neiful, would be to deprive Desselles & Connell ther create nor support a right or title by preentirely of their appropriation as soon as scription or adverse possession. As was said their mines at that point were exhausted, in Woolman v. Garringer, supra: “The plainand it has been shown that the inines were tiffs could acquire no other than a mere privipractically worked out at the time they sold lege or right to the use of the waste water, to defendants. From a very careful review or at most but a secondary and subordinate of the whole testimony, we have not found right to that of the first appropriators, and that Desselles & Connell at any time de- only such as was liable to be determined by signed or intended to place any different their action at any time." See, also, Ball v. limitations upon their appropriation than Kehl, 93 Cal. 606, 30 Pac. 780. that which existed at the time they became Now, as to the estoppel invoked in behalf the owners and possessors of the right; of plaintiffs and against defendants. It is hence there was no abandonment upon their contended that “one who stands passively part.

by and allows another to open out fields and Much stress was laid upon the case of irrigate them with water, or another to open Schulz v. Sweeny, 19 Nev. 359, 11 Pac. 253, up mines and use water to work them, for and cases of like nature, as authority in point thirteen years under the belief that he has showing an abandonment. In the case re- a vested right to the use thereof, is estopped ferred to, the very act of discharging the wa- from subsequently denying this right.” Such ter again into a natural channel, by reason a condition of things would, perhaps, be sufof the nature of the use and the absence of ficient to create an estoppel in pais if it be an intention to reclaim, constituted an aban- implied that the defendants, or their prededonment. Such is not the case here.

cessors in interest, in good conscience ought We will now consider whether plaintiffs to have spoken in the assertion of their rights, have acquired a prior and superior right to and that by reason of their passiveness or the water of the east fork of the Illinois river | nonaction plaintiffs have been misled to their as against defendants by adverse possession injury. "Nobody ought to be estopped from and use during the time intervening from averring the truth or asserting a just demand, 1877 to 1891. In order to establish a right unless by his acts or words or neglect bis now by prescription acquired by adverse use, the averring the truth or asserting the demand acts relied upon to constitute such prescrip- | would work some wrong to some other person tive right must have been an invasion of the who has been induced to do something or to rights of the party against whom it is set up, abstain from doing something by reason of of such a character as to afford him grounds what he had said or done or omitted to say of action. Anaheim Water Co. v. Semitropic or do.” 1 Herm. Estop. § 7, subd. 5. The Water Co., 64 Cal. 192, 30 Pac. 623; Mining question, then, is one of fact to be deterCo. v. Ferris, 2 Sawy. 187, Fed. Cas. No. 14,- mined upon the evidence whether--First, the 371. To bar the right of the defendants, the defendants or their predecessors were in duty use of the water by plaintiffs must have been bound to make any other assertion of their under a claim of right, open, notorious, exclu- rights than their acts during the time mensive, adverse, and hostile to that of defend- tioned would indicate; and, second, whether ants and those under whom they derive title. the plaintiffs have been misled to their injury. Faull V. Cooke, 19 Or. 467, 26 Pac. 602; Defendants contend that there has been an Thomas v. England, 71 Cal. 458, 12 Pac. 491; enlargement of plaintiffs' ditch since the Water Co. v. Hancock, 85 Cal. 226, 24 Pac. Wimers first acquired an interest in it, sub615; Kin. Irr. & 291. The use of water under sequent to the year 1877. Plaintiffs assert the a license or by permission of the prior appro- contrary. But assuming, without deciding, priator is not hostile, and cannot support a that their ditch was at the commencement of claim of right by prescription or adverse user. this suit of the same capacity as when first Huston v. Bybee, 17 Or. 147 et seq., 20 Pac. constructed, in 1860, the most natural de51; Feliz v. City of Los Angeles, 58 Cal. 73. duction to be made is that the capacity of this That plaintiffs have had the use of the water ditch is the measure of the first appropriation means of

means thereof when constructed.

ing the time alleged after use thereof by dre | At that time a priore appropriation had been

made by means of the Scotch gulch ditch, of the Scotch Gulch Company. Q. Well, was and presumably water was being carried to it used there at any time when you were points below Scotch gulch, so that it did not there,--the water ? A. Yes, sir. Q. Well, again intercept the stream above plaintiff's' why didn't you go and get it? Why, ditch. The appropriation, therefore, through they had a right to sell the water. I couldn't plaintiffs' ditch, at this early date, was in have stopped them. Q. Was it your undersubordination to the rights of defendants' standing their right was superior to yours? predecessors. This state of facts existed in A. Yes, sir. Q. Did

you recognize the 1877. Since that time, plaintiffs assert, they right of the Scotch Gulcb Company to carry have used the same ditch, without an enlarge- their water around you? a. I did.” This ment of its capacity, down to the present evidence, taken in connection with the fact time. Like conditions were prevalent in this that the Wimers have been acquainted with respect since 1877 as existed prior thereto. the Scotch gulch ditch and the management There was nothing, then, in these conditions thereof by its owners since 1877, as well as by which defendants were even impliedly no- their own, is a refutation of the idea that tified that plaintiffs were increasing, or had | plaintiffs have been misled; and, if not misat any time increased, their appropriation. | led, no injury could follow. We therefore And no direct notice was ever given defend- conclude from the testimony, which we have ants or their predecessors of any claim of an carefully and critically examined, that there increased appropriation, or that defendants' is no ground for invoking the doctrine of equirights were regarded as having been subordi- table estoppel as against defendants. We are nated to the rights of plaintiffs, until shortly satisfied that at the time of the commencement prior to the defendants' purchase from Des- of this suit, and prior thereto, defendants were selles & Connell in 1891. The simple fact carrying no greater amount of water below that plaintiffs were using the water during Scotch gulch by means of their reconstructed this time, after use by defendants and their ditch than they were entitled to carry under predecessors, and, as we have seen, by their their appropriation as its conditions prevailed sufferance, was not an infraction of their at that time, and hence the injunction should rights. Hence we see nothing in the surround- be diss ved, and the complaint dismissed. ings making it incumbent upon the defend- The decree of the court below is aflirmed, ants or their predecessors to make protest against the acts of plaintiffs. Were plaintiff's misled to their injury? W. J. Wimer

(106 Cal. 83) was asked, “Did you ever have any conversa

PEOPLE v. UN DONG. (No. 21,104.) tion with Mr. Simmons about the size of this [plaintiffs'] ditch at the time you bought it,"

(Supreme Court of California. Feb. 7, 1895.) to which he replied: "My father did, in my

ASSAULT WITH DEADLY WEAPON EVIDENCE

IDENTITY OF DEFENDANT_TESTIMONY AS TO presence. My father asked Mr. Simmons,

CHARACTER-OCCUPATION OF WITNESS. when we were talking about buying in the

1. On a trial for assault with a deadly property, about the ditch, and he said that

weapon, a number of witnesses testified that our head box was a six-foot box,-six feet defendant and one B. laid in wait at a street wide and five feet high,--and that we were

corner until the prosecuting witness came along,

when defendant pointed him out, and told B. entitled to build our entire ditch that size."

to shoot him, which B. did. Defendant was Again, “Did he say anything about his rights | positively identified by the witnesses. A peace against the Scotch gulch ditch?" Answer: Oflicer testified that he was present just after

the shot was fired, and that he recognized the "Well, we asked him that question,-if there

assailants, and that defendant was not one of was any prior adverse rights,--and he said them. A doorkeeper at a theater testified that the Scotch gulch ditch was a first right over defendant was in the theater when the shoot

ing occurred, and several witnesses testified his ditch; that they were running the water

that the prosecuting witness accused another in the river above the headgate, and he didn't

person of doing the shooting. There was evithink they would ever take it out." In 1882, dence that the trouble grew out of rival sowitness, by a report made of the Scotch gulch cieties, and that defendant was the head of

one of them, and that his prosecution was an ditch and mine to the director of the United

afterthought. Hed, that a conviction would States mint for publication in the United not be disturbed. States Gold and Silver Mining Report, in ef

2. On a trial for assault with a deadly fect recognized the rights of Desselles & Con.

weapon, where the prosecuting witness, on di

rect examination, testified that the only reason nell to the full extent as claimed by them to he could give for the shooting was that he had carry water below Scotch gulch. In the win- once notified the authorities that defendant was ter of 1888 and 1889 some China men used one of a number who had assaulted a person, it

was error to exclude, on cross-examination, a water from the Scotch gulch ditch in Allen

question as to what part defendant took in such gulch. At this time Mrs. Anna F. Smith was assault. the owner of the plaintiffs' ditch, but was op 3. On a trial for assault, it is error to alerating it through W. 1. Wadleigh, who was

low the prosecuting attorney to question de

fendant as to whether he lived in a house of her recognized agent. Wadleigh testined con

prostitution; and the fact that his answers are cerning this incident-and incidentally of the in the negative, or objections to the questions rights of Desselles & Connell at that time

are sustained, does not cure the error.

4. It is error to allow the prosecution to as follows: "Question. By whom was it used?

ask one of defendant's witnesses whether he is Answer. By some Chinamen. Bought water connected with a gumbling house, when the

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