when it can fairly be presumed to be appurtenant to some other estate.131 And it must be granted in writing describing the interest conveyed.132

§ 2420. Special damages. In a private action for obstructing a public highway, some special damage must be laid, though it is otherwise in respect to a private way.133

§ 2421. For diverting water from a quartzmill.

[TITLE.]

Form No. 574.

The plaintiff complains, and alleges:

I. That he is, and at the time hereinafter mentioned was possessed of a quartzmill capable of running five stamps, situated [state where], on creek, in this state.

II. That for more than five years previous to the said time hereinafter Lentioned, the plaintiff has had the undisputed usufructuary right to the use of all the water of said creek. · III. That on the ........ day of .... 18.., the defendant erected a dam across the bed of said creek above the said mill, and thereby diverted the water from the said mill, and ever since has continued the same dam and obstruction to the free flow of the water in said creek, so that less water ran into the plaintiff's mill.

IV. That by reason thereof the plaintiff has been unable to run more than two stamps; whereas before the said diversion of the water he was able to run five stamps, to the damage of the plaintiff .. dollars.

[DEMAND OF JUDGMENT.]

Such actions are in

§ 2422. Actions for diversion of water. the nature of an action for the abatement of nuisances, and may be maintained by tenants in common, in a joint action.134

§ 2423. Actual appropriation. A water right is only acquired by an actual appropriation and use of the water. The property is not in the corpus of the water, but is only in its use. A 31 Washb. on Easements, 28.

135

132 Wagner v. Hanna, 38 Cal. 177; 99 Am. Dec. 354; Bonelli v. Blakemore, 66 Miss. 136; 14 Am. St. Rep. 550.

133 Lansing v. Wiswall, 5 Den. 213; Aram v. Shallenberger, 41 Cal. 449; L. T. Co. v. S. W. W. R. Co., id. 564; and see Thelan v. Farmer, 36 Minn. 225; § 2398, ante.

134 Parke v. Kilham, 8 Cal. 77; 68 Am. Dec. 310. 135 Eddy v. Simpson, 3 Cal. 249; 58 Am. Dec. 408.

Vol. II-21

right may be acquired to its use which will be regarded and protected as property." 136 But this right carries with it no specific property in the water itself.137 Until a claimant is himself in a position to use the water, the water right does not exist in such sense that the mere diversion and use of the water by another is a ground of action for the conversion.138

§ 2424. Allegation of right by prior appropriation.

That on the ...

Form No. 575. day o

18.., and before

the diversion hereinafter mentioned, the plaintiff appropriated all the waters of said gulch [or creek] to his use, and from that time till the time hereinafter mentioned has enjoyed the uninterrupted use of the same.

§ 2425. Appropriation. The natural water in a ravine on the public lands belongs to the first appropriator thereof, and for either a diversion or appropriation thereof an action will lie.139 And an appropriation for mill purposes stands on the same footing.140 And such appropriation can not be constructive.141 And it must be for some useful purpose.'

142

The erection of a dam

§ 2426. Appropriation, how effected. across a natural water-course is an actual appropriation.143 Surveys, notices, stakes, and blazing of trees, followed by work and actual labor, without abandonment, will, in every case where the work is completed, give title to the water over subsequent claim

136 Kidd v. Laird, 15 Cal. 179.

137 McDonald v. Askew, 20 Cal. 206.

138 Kimball v. Gearhart, 12 Cal. 27.

139 Hoffman v. Stone, 7 Cal. 49; affirmed in Merced Min. Co. v. Fremont, id. 325; 68 Am. Dec. 262; Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 150; 70 Am. Dec. 769.

140 McDonald v. Bear River Co., 13 Cal. 220.

141 Kelly v. Natoma Water Co., 6 Cal. 105.

142 Weaver v. Eureka Lake Co., 15 Cal. 271; Davis v. Gale, 32 id. 26; 91 Am. Dec. 564; McKinney v. Smith, 21 Cal. 374. To make a valid appropriation of water, there must be some actual beneficial purpose existing at the time or contemplated in the future as the object for which the water is utilized. Simmons v. Winters, 21 Oreg. 35; 28 Am. St. Rep. 727. And a mere diversion of water without applying it to a beneficial use within a reasonable time is unlawful. Combs v. Agr. Ditch Co., 17 Col. 146; 31 Am. St. Rep. 275; and see Farmers' High Line, etc., Co. v. Southworth, 13 Col.

143 Kelly v. Natoma Water Co., 6 Cal. 105.

ants. 144 A notice of intention to appropriate the waters of a stream is evidence of possession, but of itself alone is not sufficient.145 The mere act of commencing a ditch with the intention of appropriating, is not sufficient of itself.146 To acquire a prescriptive right to overflow the lands of another, there must have been an uninterrupted enjoyment, under claim of right, for a period of five years.

147

§ 2427. Aqueduct from spring. An aqueduct from a spring in a separate parcel of land, to a mill belonging to the same. owner, with the right to use the water from the spring, was reserved by implication to the grantor as against his grant of that parcel of land by metes and bounds, without reservation of, or reference to, the easement.148

To turn aside a useful element

§ 2428. Diversion a nuisance. from premises is as much a nuisance as to turn upon them a destructive element.149 It is a private nuisance.150 So a ditch to carry away water, which was rightfully flowing to a mining claim, is as much a nuisance as a dam to flood it.151

§ 2429. Diverting water. An action will lie by the riparian proprietor for diverting water from a stream when the same is needed for agricultural purposes. Proprietors above him may use the water for irrigation, mills, or otherwise, but must return it to its natural channel.152 The right of irrigation is

144 Kimball v. Gearhart, 12 Cal. 27. 145 Thompson v. Lee, 8 Cal. 275. 146 Kimball v. Gearhart, 12 Cal. 27. To effect the appropriation of water, any gulch, dry ravine, or depression in land may be used as a part of the ditch for conducting the water, and so may the lower portion of the same channel from which the water is taken. Simmons v. Winters, 21 Oreg. 35; 28 Am. St. Rep. 727.

147 Grigsby v. Clear Lake Water Co., 40 Cal. 396. As to partial appropriation, see Smith v. O'Hara, 43 id. 371.

148 Seymour v. Lewis, 13 N. J. Eq. 439; 78 Am. Dec. 108; citing Nicholas v. Chamberlain, Cro. Jac. 121; Lampman v. Milks, 21 N. Y. 505; see, also, Hanson v. McCue, 42 Cal. 303; 10 Am. Dec. 299.

149 Parke v. Kilham, 8 Cal. 77; 68 Am. Dec. 310.

150 Tuolumne Water Co. v. Chapman, 8 Cal. 397.

151 Parke v. Kilham, 8 Cal. 77; 68 Am. Dec. 310; Yolo Co. v. City of Sacramento, 36 Cal. 193.

152 For the law on this subject, see Gale & Wheat. on Easements, 234; also, Greenslade v. Halliday, 6 Bing. 379; Evans v. Merri

limited by the fact whether the quantity of water in the stream is materially lessened. The use must be such as returns the water to the channel, and does not materially lessen its volume, so that the proprietor may have enough for his purposes.'

153

$2430. Easements. Every person through whose land a natural water-course runs, has a right, publici juris, to the benefit of it, for all the useful purposes to which it may be applied, and no proprietor of land on the same water-course, either below or above, has a right unreasonably to divert it from flowing into his premises, or obstruct it in passing from them, or to corrupt or destroy it. It is inseparably annexed to the soil, not as an easement nor as an appurtenance, but as parcel. Use does not create it; and disuse can not destroy or suspend it.154

§ 2431. Injury must be continuing. No equitable remedy can be had for a mere past diversion of a water-course, but when the injury is continuing, relief may be sought in equity.155 Where the complaint alleged that the defendants had dug a mining ditch above one previously constructed by defendants, and thereby diverted the water of the stream from plaintiff's ditch, but did not aver that the injury was continuing, or threatened to be continued, or likely to be continued, it was sufficient for the recovery of damages, but not for an injunction.156

weather, 3 Scam. 496; 38 Am. Dec. 106; Ingraham v. Hutchinson, 2 Conn. 584; Colburn v. Richards, 13 Mass. 420; 7 Am. Dec. 160; Anthony v. Lapman, 5 Pick. 175; Blanchard v. Baker, 8 Greenl. 253; 23 Am. Dec. 504; Arnold v. Foot, 12 Wend. 330; Wadsworth v. Tillotson, 15 Conn. 366; 39 Am. Dec. 391.

153 See Ang. on Water-courses, 122; consult also cases cited above. And to same effect, see Clark v. Pennsylvania R. R. Co., 145 Penn. St. 438; 27 Am. St. Rep. 710. Right to use water for irrigation. Alta Land, etc., Co. v. Hancock, 85 Cal. 219; 20 Am. St. Rep. 217. 154 Johnson v. Jordan, 2 Met. 239; 37 Am. Dec. 85; Tyler v. Wilkinson, 4 Mason, 397; Embrey v. Owen, 6 Exch. 369; Crossley v. Lightowler, L. R., 3 Eq. 296.

155 Tuolumne Water Co. v. Chapman, 8 Cal. 392.

158 Coker v. Simpson, 7 Cal. 310. A riparian proprietor is entitled to an injunction to restrain the continued unlawful diversion of the waters of a stream adjoining his land, although the injury caused by the diversion is incapable of ascertainment, or of being estimated in damages. Heilbron v. Canal Co., 75 Cal. 426; 7 Am. Rep. 183.

When land is conveyed a natural pond, the grant But if it is an artificial

§ 2432. Land bounded by pond. bounding upon a lake or pond, if it is extends only to the water's edge.157 pond, like a mill pond, caused by the flowing back of the water of the river, the grant extends to the middle of the stream in its natural state.158 Where plaintiffs owned the water of an artificial mill pond two hundred years old, and defendants cut and carried away ice from the same, both parties claiming title to the land covered by said pond, it was held that, although defendants owned to the middle of the original stream, they were liable, having no more right to take the ice than they would have had to divert the water.159

§ 2433. Prescription. Rights to the use of water become fixed after five years' appropriation of the same;160 and the use of water for the time limited by statute, within which an action must be commenced to determine the right to it, raises a presumption of title.161 But the burden of proving adverse possession for five years, as against a party claiming a prior right, rests on the party claiming the right by prescription.162

2434. Prior possession. The foundation of the right to water is the first possession, and this right is usufructuary, and consists not so much in the fluid as in its use.163 The first appropriator of water of a stream has a right to its use and enjoyment to the extent of his original appropriation; 164 for

157 Ang. on Water-courses, 40; West Rexbury v. Stoddard, 7 Allen, 167.

158 State v. Gilmanton, 9 N. H. 461; Hathorn v. Stinson, 1 Fairf. 238; Robinson v. White, 42 Me. 209; see Ang. on Water-courses, 41, and cases there cited.

159 Mill River Woolen Manufacturing Co. v. Smith, 34 Conn. 462. 160 Crandall v. Woods, 8 Cal. 136.

161 American Co. v. Bradford, 27 Cal. 360.

162 Id.; see, also, Grigsby v. Clear Lake, etc., Co., 40 Cal. 396. An allegation that for ten years prior to the commencement of the action, the plaintiff had the undisputed usufructuary right to the use of the waters" of a certain stream, does not allege a right to the use of the waters by prescription. Heintzen v. Bluminger, 79 Cal. 5.

163 Eddy v. Simpson, 3 Cal. 249; 58 Am. Dec. 408; § 2425, ante. 164 Butte Canal & Ditch Co. v. Vaughan, 11 Cal. 143; 70 Am. Dec.