Kelly v. Natoma Water Co.
California Supreme Court
Appeal from the District Court of the Twelfth Judicial District. The defendants, the Natoma Water and Mining Co., commenced a canal, in 1852, to conduct water from a point on the South Fork of the American River, about twenty miles above Alder Creek, to supply the miners above and below that creek. In September, 1853, they purchased a dam, constructed a few months prior, on Alder Creek, and turned their water into the bed of the creek, above the dam.
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Appeal from the District Court of the Twelfth Judicial District. The defendants, the Natoma Water and Mining Co., commenced a canal, in 1852, to conduct water from a point on the South Fork of the American River, about twenty miles above Alder Creek, to supply the miners above and below that creek. In September, 1853, they purchased a dam, constructed a few months prior, on Alder Creek, and turned their water into the bed of the creek, above the dam. They had flumes, conducting the water from the dam to points lower down. In Alder Creek there is no running water from natural sources, except…
1Opinion of the Court
The opinion of the Court was delivered by Mr. Justice Heydenfeldt.
Mr. Chief Justice Murray and Mr. Justice Terry concurred.
Possession, or actual appropriation, must be the test of priority in all claims to the use of water, whenever such claims are not dependent upon the ownership of the land through which the water flows.
Such appropriation cannot be constructive, because there would be no rule to limit or control it, resting, as it must, only in intention. The principle, as laid down in Eddy v. Simpson. 3 Cal. R., 249, must this case.
The design of the defendants, two years before, to…
2Cited by13 opinions
- Galiger v. McNultyMontana Supreme Court · 1927
- Yuba River Power Co. v. Nevada Irrigation DistrictCalifornia Supreme Court · 1929
- Fullerton v. State Water Resources Control BoardCalifornia Court of Appeal · 1979
- Madera Irrigation District v. All PersonsCalifornia Supreme Court · 1957
- Inyo Consol. Water Co. v. JessCalifornia Supreme Court · 1911
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