| Cal. | Jul 1, 1862
Field, C. J. concurring.
This is an action for damages, and for the restitution of certain premises described in the complaint. The facts are clearly stated in the findings of the Court, and the conclusion arrived at is undoubtedly correct. The principal question is, whether a person appropriating and diverting the water of a stream at a given point, can afterwards change the point of diversion to the prejudice of a subsequent appropriator ? The case of Kidd v. Laird, (15 Cal. 161" date_filed="1860-07-01" court="Cal." case_name="Kidd v. Laird">15 Cal. 161) and the authorities there cited, are decisive of this question, and it would seem that the position of the appellants is based upon a misconception of the doctrine enunciated. They appear to regard the right to change the point of diversion as absolute and unqualified, whereas the rule is that the change must not injuriously affect the rights of others. This we expressly declared, and our views upon the subject have undergone no modification.
One of the grievances of which the plaintiffs complain is, that they were ejected from the possession of certain ground occupied by them for the purpose of constructing a dam and ditch. The object was to divert the water away from the defendants, and we think the plaintiffs have no right to complain of the means adopted to defeat this object. As against the defendants, the diversion would have been illegal, and we regard their action in the premises as a proper and legitimate mode of averting the injurious consequences.
Judgment affirmed.