Himes v. Johnson

Action fob. Diversion of Water—Parties—Tenants in Common.—In an action for the diversion of water from a ditch and land, owned by the plaintiff and others, his co-tenant is not a necessary party. Id. —Relevancy of Evidence.—In such an action, testimony, as to the rights of persons on the stream below the premises of both plaintiff and defendant, can have no relevancy to the issue, and is therefore inadmissible. Id.—Water Rights upon Public Lands—Instructions.—The Court (at the instance of the plaintiff) in effect instructed the jury, that the appropriator of the waters of a stream upon the public lands of the United States, for a useful purpose, acquired a right to the same against parties subsequently acquiring title from the government, and all other persons, except previous appropriators; and refused to instruct the jury (at the instance of the defendant), that such appropriation must have been made in the manner recognized by the local customs, laws, or decisions of the Courts of this State; but modified the same by striking out the words “ local customs,” and gave the instruction as modified. Held: The objections to the instructions given were untenable, and the Court did not err in modifying the instruction asked for by defendant. Id.—Costs.—In an action for damages and an injunction, where the injunction is denied, a judgment for less than three hundred dollars does not carry costs.

Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Superior Court of Sierra County. Howe, J. Action for the diversion of water from the plaintiff’s ditch, and for an injunction. The complaint alleged the appropriation of the water by the plaintiff’s grantors. The answer, besides denying the allegations of the complainant, alleged, in effect, that one Himes was equally interested in the land and water right described in the complaint, and in the relief sought, and that he should have been joined as plaintiff. The following instructions were given by the Court, at the instance of the plaintiff: “ Where a person, by means of a dam and ditch, or other appliance necessary for the purpose, diverts the waters of a stream upon the public lands of the United States and uses the same for some useful purpose, such as mining, agricultural, or manufacturing, he acquires a right to the same against every one except some one who may have previously diverted the same and used it for some useful purpose. Of course such right is subject to the prior rights of others, if any such there be, to the use of said waters. “Where a person, by means of a dam and ditch, or other, appliance necessary for the purpose, diverts the water of a stream and uses the same for some useful purpose, he acquires a vested right therein, and if, afterwards, other persons acquire the ownership or possession of the land over or through which said waters flow, from the government or any other person, such ownership or possession of said land is subject to the said water right.” ( The defendant’s attorney requested the Court to instruct the jury as follows, and the Court modified the instruction by striking out the words italicized. “The jury are instructed that in order to acquire a vested right, by appropriation, to the use of water, or to a water ditch, upon the public lands of the United States, in the sense of the ninth section of the Act of Congress, passed July 26,1866, such water must have been appropriated, and- such ditch constructed, in the manner recognized by the local customs, laws or decisions of the Courts of this State.” A petition for re-hearing in bank was filed in this case after judgment was denied.