Burnett, T., after stating the facts, delivered the opinion of the Court—Terry, J., concurring.
It may be said, with truth, that the judiciary of this State, has had thrown upon it, responsibilities not incurred by the Courts of any other State in the Union. In addition to those perplexing cases that must arise, in the nature of things, and especially in putting into practical operation, a new constitution and a new code of statutes, we have had.a large class of cases, unknown in the jurisprudence of our sister States. The mining interest of the State has grown up under the force of new and extraordinary circumstances, and in the absence of any specific and certain legislation to guide us. ■ Left without any direct precedent, as well as without specific legislation, we have been compelled to apply to this anomalous state of things the analogies of the common law, and the more expanded principles of equitable justice. There being no known system existing at the beginning, parties were left without any certain guide, and for that reason, have placed themselves in such conflicting positions that it is impossible to render any decision that will not produce great injury, not only to the parties immediately connected with the suit, but to large bodies of men, who, though no formal parties to the record, must be deeply affected by the decision. Eo class of cases can arise more difficult of a just solution, or more distressing in practical result. And the present is one of the most difficult of that most perplexing class of cases.
The business of gold-mining was not only new to our people; and the cases arising from it, new to our Courts, and without judicial or legislative precedent, either in our own country or in that from which we have borrowed our jurisprudence; but there are intrinsic difficulties in the subject itself, that it is almost impossible to settle satisfactorily, even by the application to them of the abstract principles of justice. Yet we are compelled to decide these cases, because they must be settled in some way, [333]*333whether we can say after it is done, that we have given a just decision or not.
The use of water for domestic purposes, and for the watering of stock, are preferred uses, because essential to sustain life. Other uses must be subordinate to these. In such cases, the element is entirely consumed. ¡Next to these, may properly be placed, the use of water for irrigation in dry and arid countries. In such cases, the element is also entirely consumed. Under a proper system of irrigation, only so much water is taken from the stream as may be needed, and the whole is absorbed or evaporated. Entire absorption is the contemplated result of irrigation. When properly used, as a motive power for propelling machinery, the element is not injured, because the slight evaporation occasioned by the use is unavoidable, and is not esteemed by the law a substantial injury. Any number of riparian proprietors, can use the water as a motive power, in succession, without substantial injury to any other, for the element is just as good for the purposes of the last, as for those of the first proprietor.
Considering the different uses to which water is applied, in countries governed by the common law, it is not so difficult to understand the principles that regulate the relative rights of the different riparian proprietors. As to the preferred uses, each proprietor had the right to consume what was necessary, and after doing this, he was bound to let the remaining portion flow, without material interruption or deterioration, in the natural channel qf the stream, to others below him. If the volume of water was not sufficient for all, then those highest up the stream were supplied in preference to those below. So far as the preferred uses were concerned, no one was allowed to deteriorate the quality of the water. And for the purposes of a motive power, there was no use of the element that could impair its quality.
But in our mineral region we have a novel use of water, that cannot be classed with the preferred uses; but still a use that deteriorates the quality of the element itself, when wanted a second time for the same purposes. In cases heretofore known,' either the element was entirely consumed, or else its use did not impair its quality, when wanted again for the same purpose. And this fact constitutes the great difficulty in this, and other like cases. If the use of water for mining purposes did not deteriorate the quality of the element itself, then the only injury that could be complained of, would be the diminution in the quantity, and the interruption in the flow. It is this novel use of water, and its effects upon the fluid itself, that constitute the main difficulty in this case.
In repeated decisions of this Court, it has been uniformly held, that the miners were in the possession of the mineral lands un[334]*334der a license from both the State and Federal Governments. This being conceded, the superior proprietor must have had some leading object in view, when granting this license; and that object must have been the working of these mineral lands to the best advantage. The intention was to distribute the bounty of the government among the greatest number of persons, so as niost rapidly to develop the hidden resources of this region; while at the same time, the prior substantial rights of individuals should be preserved. In the working of these mines, water is an essential element; therefore that system which will make the most of its use, without violating the rights of individuals, will be most in harmony with the end contemplated by the superior proprietor.
Keeping this position in view, we will proceed to examine the questions arising in this case. It has been held by this Court, that the owners of a water-ditch were entitled to the exclusive use of the waters of the stream, as against all subsequent locators on the stream below the ditch. In the late case of Hill v. King and others, it was held, that the ditch proprietor' was equally entitled to the exclusive use of the water, pure and undiminished, as well against the subsequent locator above, as below, the ditch; and that the two cases were not distinguishable in any lessential particular. In that case, a petition for a re-hearing was filed, and has not yet been disposed of. The question is still, therefore, an open one.
It would certainly seem, at first view, that there could be no distinction in the two cases. But is this true ? When a party constructs a ditch, and diverts the waters of a stream before the rights of others have attached below, he only takes it from one unoccupied mining locality to another. In such case, there can, as a general rule, be no substantial injury done to the mining interest of the State, or to the rights of individuals. The water is taken to a locality where it is used; and after being so used, it finds it way to other mining localities, where it is again used. The effect of the diversion is not to diminish the number of times the water may be used. In the majority of cases, it is used as often, and upon the whole, as profitably, as if it had never been diverted, but had continued to flow down its natural channels. The general usefulness of the' element is not impaired by the diversion. It may be very safely assumed, that as much 'good, if not more, is accomplished by the diversion, as could have been attained, had such diversion never occurred.
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Burnett, T., after stating the facts, delivered the opinion of the Court—Terry, J., concurring.
It may be said, with truth, that the judiciary of this State, has had thrown upon it, responsibilities not incurred by the Courts of any other State in the Union. In addition to those perplexing cases that must arise, in the nature of things, and especially in putting into practical operation, a new constitution and a new code of statutes, we have had.a large class of cases, unknown in the jurisprudence of our sister States. The mining interest of the State has grown up under the force of new and extraordinary circumstances, and in the absence of any specific and certain legislation to guide us. ■ Left without any direct precedent, as well as without specific legislation, we have been compelled to apply to this anomalous state of things the analogies of the common law, and the more expanded principles of equitable justice. There being no known system existing at the beginning, parties were left without any certain guide, and for that reason, have placed themselves in such conflicting positions that it is impossible to render any decision that will not produce great injury, not only to the parties immediately connected with the suit, but to large bodies of men, who, though no formal parties to the record, must be deeply affected by the decision. Eo class of cases can arise more difficult of a just solution, or more distressing in practical result. And the present is one of the most difficult of that most perplexing class of cases.
The business of gold-mining was not only new to our people; and the cases arising from it, new to our Courts, and without judicial or legislative precedent, either in our own country or in that from which we have borrowed our jurisprudence; but there are intrinsic difficulties in the subject itself, that it is almost impossible to settle satisfactorily, even by the application to them of the abstract principles of justice. Yet we are compelled to decide these cases, because they must be settled in some way, [333]*333whether we can say after it is done, that we have given a just decision or not.
The use of water for domestic purposes, and for the watering of stock, are preferred uses, because essential to sustain life. Other uses must be subordinate to these. In such cases, the element is entirely consumed. ¡Next to these, may properly be placed, the use of water for irrigation in dry and arid countries. In such cases, the element is also entirely consumed. Under a proper system of irrigation, only so much water is taken from the stream as may be needed, and the whole is absorbed or evaporated. Entire absorption is the contemplated result of irrigation. When properly used, as a motive power for propelling machinery, the element is not injured, because the slight evaporation occasioned by the use is unavoidable, and is not esteemed by the law a substantial injury. Any number of riparian proprietors, can use the water as a motive power, in succession, without substantial injury to any other, for the element is just as good for the purposes of the last, as for those of the first proprietor.
Considering the different uses to which water is applied, in countries governed by the common law, it is not so difficult to understand the principles that regulate the relative rights of the different riparian proprietors. As to the preferred uses, each proprietor had the right to consume what was necessary, and after doing this, he was bound to let the remaining portion flow, without material interruption or deterioration, in the natural channel qf the stream, to others below him. If the volume of water was not sufficient for all, then those highest up the stream were supplied in preference to those below. So far as the preferred uses were concerned, no one was allowed to deteriorate the quality of the water. And for the purposes of a motive power, there was no use of the element that could impair its quality.
But in our mineral region we have a novel use of water, that cannot be classed with the preferred uses; but still a use that deteriorates the quality of the element itself, when wanted a second time for the same purposes. In cases heretofore known,' either the element was entirely consumed, or else its use did not impair its quality, when wanted again for the same purpose. And this fact constitutes the great difficulty in this, and other like cases. If the use of water for mining purposes did not deteriorate the quality of the element itself, then the only injury that could be complained of, would be the diminution in the quantity, and the interruption in the flow. It is this novel use of water, and its effects upon the fluid itself, that constitute the main difficulty in this case.
In repeated decisions of this Court, it has been uniformly held, that the miners were in the possession of the mineral lands un[334]*334der a license from both the State and Federal Governments. This being conceded, the superior proprietor must have had some leading object in view, when granting this license; and that object must have been the working of these mineral lands to the best advantage. The intention was to distribute the bounty of the government among the greatest number of persons, so as niost rapidly to develop the hidden resources of this region; while at the same time, the prior substantial rights of individuals should be preserved. In the working of these mines, water is an essential element; therefore that system which will make the most of its use, without violating the rights of individuals, will be most in harmony with the end contemplated by the superior proprietor.
Keeping this position in view, we will proceed to examine the questions arising in this case. It has been held by this Court, that the owners of a water-ditch were entitled to the exclusive use of the waters of the stream, as against all subsequent locators on the stream below the ditch. In the late case of Hill v. King and others, it was held, that the ditch proprietor' was equally entitled to the exclusive use of the water, pure and undiminished, as well against the subsequent locator above, as below, the ditch; and that the two cases were not distinguishable in any lessential particular. In that case, a petition for a re-hearing was filed, and has not yet been disposed of. The question is still, therefore, an open one.
It would certainly seem, at first view, that there could be no distinction in the two cases. But is this true ? When a party constructs a ditch, and diverts the waters of a stream before the rights of others have attached below, he only takes it from one unoccupied mining locality to another. In such case, there can, as a general rule, be no substantial injury done to the mining interest of the State, or to the rights of individuals. The water is taken to a locality where it is used; and after being so used, it finds it way to other mining localities, where it is again used. The effect of the diversion is not to diminish the number of times the water may be used. In the majority of cases, it is used as often, and upon the whole, as profitably, as if it had never been diverted, but had continued to flow down its natural channels. The general usefulness of the' element is not impaired by the diversion. It may be very safely assumed, that as much 'good, if not more, is accomplished by the diversion, as could have been attained, had such diversion never occurred. In fact, we must, in reason, presume that the water is taken to richer mining localities, where it is more needed, and, therefore, the diversion of the stream promotes this leading interest of the State. It was upon the principle, that the leading interest of the superior proprietor was attained by these diversions, that the deeisons of this Court sustaining them, were predicated.
[335]*335But for the sake of the argument, we will take the position to be true, that the owner of a ditch at any point upon a stream in the mineral region, has the exclusive right, as against all subsequent locators above his ditch, to the use of the water, undimin-. ished in quantity, unadulterated in quality, and uninterrupted in flow. We will, then, endeavor to see how such a theory will operate in practice. And before we do this, we must concede, that as a general rule, the effect of a particular construction of a statute; or the application of a certain principle, cannot be used against it, except in cases of reasonable doubt. If the meaning of the statute be clear, or the application of the principle well settled, Courts are not disposed to consider the consequences. The legislative power is responsible for them in such cases, and relief must be sought there. But in these mining cases, we are virtually projecting a new system, and if ever the practical effects of a theory could be justly considered in any case, it is apprehended it could be legitimately done in this.
It is stated by a very intelligent witness in this case, that “ as rapid a stream as Bear River would carry sediment a long way;” and it may be correctly said, that about the same rapidity of current is found in all the mountain streams.
If, then, we lay down the doctrine as true, that the ditch-owner is entitled to the water in as pure a state as it was at the time he constructed his ditch, the result must be that those locating above him can never use the water at all, even in cases where the upper end of the ditch taps the stream near the point where it leaves the mineral region. For as the streams are rapid, the sediment must, in greater or less quantities, come down, to his ditch. The inevitable practical result must be, that the water cannot be used so often, and .the general usefulness of this element for mining purposes must be greatly impaired, and the leading intention of the superior proprietor be thus far defeated.
It would seem, therefore, that there is a greater difference be-the two cases than would at first appear. But this difference ■ is greater still, when we come to consider other cases that must arise. Suppose the ditch only takes from the stream a portion of the volume, say, for example, one-tenth, the remaining, portions are left to flow down the natural channel, and may or may not be used as they may or may not bo needed below. But in such a case, what are those who afterwards locate above, on the same stream, to do ? If they use any portion of the water, it becomes charged with sediment that must mingle the whole volume of the stream, and the water, thus deteriorated, must flow to the ditch. And if the principle is sustained that the water must flow pure to the ditch, then the nine-tenths cannot be used above the ditch for mining purposes; and because the ditch-owner has taken away a por[336]*336tion only of the stream, must the use of the other nine-tenths be lost to all?
After the most careful and anxious consideration of this most difficult subject, the following conclusions occur to me as the nearest practicable approach to a fair and equitable adjustment of this matter:
1. The ditch-owner is entitled to have the water flow, without material interruption, in its natural channel. This right would seem to be compatible in general with the fair use of the water above.
. 2. BEe is entitled to the water, so undiminished in quantity, as
to leave sufficient to fill his ditch as it existed at the time the .locations were made above. This right is essential to the protection of the ditch-owner. If we lay down the rule that the subsequent locators above may so use the water as to diminish the quantity, it would be difficult to set any practical limits to such diminution, and the ditch-property might be rendered entirely worthless. As the water cannot be absorbed or evaporated but once, the ditch-owner should be entitled to its exclusive use in such a case.
3. And as to the deterioration in quality, the injury should be considered as an injury without consequent damage.
For these reasons, I think the judgment of the Court below should be reversed, and the cause remanded for further proceedings.