95 P. 1057 | Idaho | 1908
This is an appeal from a judgment and order denying a motion for a new trial. Tbe action was commenced by plaintiff to enjoin defendants from interfering with bis use of the water of Boyle’s gulcb, which is a small stream tributary to Wolf creek near Placerville in Boise county.
Tbe complaint alleges that tbe plaintiff, Saunders, owns certain placer mining property situated along Boyle’s gulcb above tbe entrance into Wolf creek, and that be is entitled to 600 inches of tbe flow of tbe stream for use on bis placer mines, under an appropriation dating from December, 1885. Tbe defendants denied tbe plaintiff’s right and priority, and asserted an appropriation and priority to all the waters of tbe stream, superior and paramount to tbe right and interest of the plaintiff. Tbe trial resulted in a judgment in favor of tbe defendants.
Tbe principal argument by tbe appellant in this court is tbe right of a prior appropriator of tbe waters of a stream in
The principal facts in the case essential to a determination of this appeal are as follows: Prior to the year 1870, one MeDevitt acquired the right to the use of a part of the waters of the left or west fork of Boyle’s gulch, and he conveyed that part of the water of the left-hand fork belonging to him through and by means of a ditch, and used and applied the same on his placer grounds in the east, or right-hand, fork of that stream. This ditch extended from the left fork around the point of the hill to the right fork, a distance of some seven or eight hundred feet. In the year 1870, one Weiss made an appropriation of some 700 inches of the waters of the left fork of this gulch, which he thereafter used in placer mining on grounds situated in the gulch of the west fork of this stream. By the year 1883, Weiss had acquired, by purchase or otherwise, all of the placer grounds and water rights previously owned by MeDevitt, together with all other claims in both forks of Boyle’s gulch. He subsequently used all of the waters on his claims situated on the left fork of the stream and so continued to use and apply the waters down to the year 1901, at which time his grounds were worked out and exhausted. In the latter year, Weiss leased and subsequently sold all of the placer grounds and water rights to the defendants and respondents, Wood and Robison. In the year 1885, Saunders made an appropriation of the waters of Boyle’s gulch and diverted the same at a point below the forks thereof, where he constructed a dam and ditch and began using and applying the waters in working out his placer property which was situated immediately below the Weiss property. Saunders continued so to use the waters thus appropriated and diverted down to the year 1900.
The troubles which led up to this lawsuit began about the year 1901. Saunders concluded that he wanted to divert the water for use on his placer claim at a point up the west fork
As to the contention made by respondents to the effect that one who has appropriated water for mining purposes may change the place of use to any place or ground that he may desire, irrespective of the damage or injury such change may inflict or entail upon subsequent appropriators below him, we reserve our opinion. As we view the case, it is not essential to its determination that we pass upon that question of law. We are not prepared at this time to give that proposition the sanction of this court, and we consequently refrain from giving any other expression on the subject.
The judgment of the lower court will be affirmed, and it is so ordered. Costs in favor of the respondents.