Leigh Co. v. Independent Ditch Co.

8 Cal. 323 | Cal. | 1857

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring.

The demurrer was properly overruled. The allegation that the plaintiffs were the owners, and in the possession of the mining-claims, was sufficient, without setting out any of the particulars of their title. And the ownership and possession of the claims, drew to them the right to the use of the water flowing in the natural channel of the stream. The diversion of the water was, therefore, an injury to the plaintiffs, for which they could sue. The principle involved in - this case, was expressly decided by this Court, in the case of Crandall and others v. Woods and others, July, 1857. In that ease it was said: “ One who locates upon public lands with the view of appropriating them to his own use, becomes the absolute owner thereof, as against every one but the government, and is entitled to all the privileges and incidents which appertain to the soil, subject to the single exception of rights antecodentlv acquired.”

Judgment affirmed.