Smith v. O'hara
California Supreme Court
Appeal from the District Court of the Fifth Judicial District, Tuolumne County. The plaintiff alleged in his complaint that he and his grantors, since 1851, had owned a ditch known as Woods’ Ditch, and had, until prevented from doing so by defendants, appropriated in it all the night and Sunday water flowing in Woods’ Creek, to the extent of eighty-four inches, and had also appropriated in it all the day water, to the-extent of eighty-four inches, except the first…
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Appeal from the District Court of the Fifth Judicial District, Tuolumne County. The plaintiff alleged in his complaint that he and his grantors, since 1851, had owned a ditch known as Woods’ Ditch, and had, until prevented from doing so by defendants, appropriated in it all the night and Sunday water flowing in Woods’ Creek, to the extent of eighty-four inches, and had also appropriated in it all the day water, to the-extent of eighty-four inches, except the first twenty-five inches flowing down the same; that plaintiff became the owner of said property in 1868, and that defendants had…
1Opinion of the Court
By the Court,
Rhodes, J.:
It is not to he doubted, that the person who first' appropriates for mining or other purposes the waters of a stream running upon the public lands, is entitled to the same, to the exclusion of all subsequent appropriations by other persons for the same or other purposes. The defendants do not question this doctrine, but deny its application to this case.
The Court instructed the jury, in effect, that if the miners who were using the waters of the creek, made no claim to the use of the waters during Sunday and in the night-time, another person might appropriate the…
2Cited by31 opinions
- Stanislaus Water Co. v. BachmanCalifornia Supreme Court · 1908
- Barnes v. SabronNevada Supreme Court · 1875
- Union Mill & Mining Co. v. DangbergU.S. Circuit Court for the District of Nevada · 1897
- Hindman v. RizorOregon Supreme Court · 1891
- Low v. SchafferOregon Supreme Court · 1893
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