Parke v. Kilham
California Supreme Court
Appear from the District Court of the Fifth Judicial District, County of Amador. On re-hearing. Parke and Struck, the plaintiffs in the Court below, brought this action to recover from defendant the use of the waters of the middle fork of Jackson creek, and for damages, alleging a priority of right thereto. The answer of defendant denied plaintiffs’ priority, and claimed an exclusive right to the use of the waters of that stream.
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Appear from the District Court of the Fifth Judicial District, County of Amador. On re-hearing. Parke and Struck, the plaintiffs in the Court below, brought this action to recover from defendant the use of the waters of the middle fork of Jackson creek, and for damages, alleging a priority of right thereto. The answer of defendant denied plaintiffs’ priority, and claimed an exclusive right to the use of the waters of that stream. The testimony showed that plaintiffs’ grantors, about the first of December, 1852, located a mining-claim on the creek, at a place called Elliot’s Eanch, and in…
1Opinion of the CourtBurnett, J.
This case was decided at the last April Term of this Court, and *79a re-argument had at the present time. We are satisfied, upon a more full argument and a more careful consideration of the case, that the judgment of the Court below should be reversed, and a new trial had. The learned counsel for the defendant insists that we did not correctly understand him, when we said, in a former opinion,.that “this position is based upon the idea, that the proper point could not be designated with certainty by a proper survey, but must be determined by the actual construction of the ditch.”
Taking the…
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