By the Court, Sanderson, J.:
Action to restrain the defendant from diverting the waters of Mormon Creek, in Tuolumne County, to the prejudice of the plaintiffs’ prior rights, and for damages already sustained. The case was tried with a jury in the Court below, and a general verdict in favor of the plaintiffs was rendered. Under the direction of the Court, the jury also rendered a special verdict, in view of which it was claimed by the defendant that the judgment should go with him. The Court held otherwise, and rendered a judgment for the plaintiffs for the amount of damages found.by the jury, and perpetually restraining the defendant from interfering with or diverting the waters of the creek at any time in such a manner as to interrupt or disturb the use of the plaintiffs to the extent of their interest therein, which was fixed at sixty-two inches. A motion for a new trial was made and denied.
The complaint is in the usual form in such cases. An appropriation and continuous use of the waters of Mormon Creek, running as far back as the spring of 1851, for mining and agricultural purposes, by means of a ditch dug for that purpose, is alleged; and also a subsequent diversion of the water to the prejudice of the plaintiffs by defendant, by means of a ditch which taps the creek at a point above that of the plaintiffs.
[31]*31The defendant denies the prior right of the plaintiffs, and sets up a prior right in himself, and avers an appropriation and continuous use of the waters of the creek to the capacity of his ditch, which is four hundred inches, for mining and agricultural purposes, from a date prior to the appropriation of the plaintiffs.
The defendant further alleges that the plaintiffs’ ditch was dug out and the waters of the creek appropriated by them or their grantors solely for the purpose of working a few mining claims which belonged to the first owners of the ditch; and that said claims were worked out, and, together with the ditch, abandoned by the then owners long prior to the time at which the plaintiffs became the owners or possessors of the ditch.
He further avers that he and his grantors have been in the quiet and peaceable possession of the waters of the creek to the full capacity of his ditch for about thirteen years, prior to the commencement of this action, without let or hindrance on the part of the plaintiffs or their grantors.
He also seeks the protection of the Statute of Limitations, and avers that neither the plaintiffs nor their grantors have been in the possession of the waters of the creek within five years next preceding the commencement of this action, except in subordination to the alleged right of the defendant to divert the same to the extent of four hundred inches.
Ho exceptions were taken to the admissibility of evidence, and all the questions made by counsel relate to the law of the case, as applicable to the facts specially found by the jury, and as construed by the Court in refusing and giving instructions.
The plaintiffs’ ditch was dug in March or April, 1851, and sixty-two inches of the waters of the creek thereby appropriated. The ditch was dug and said appropriation made solely for the purpose of working certain mining claims which belonged to the parties by whom the ditch was dug; and said purpose was fully accomplished prior to the fifth of July, 1855, which was the date at which the ditch was sold to Reynolds, Goodwin & Co., by whom the ditch was extended [32]*32and afterwards sold to Battenfield in May, 1858, who after-wards sold to plaintiffs on the tenth of February, 1864. More than two years intervened between the daté at which the mining claims were worked out and abandoned and the first sale of the ditch; during which time the owners made no use of the ditch, but went to other parts, leaving the ditch, however, in the care of one Demple, with license to use the same. The plaintiffs now use and seek to use the waters of the creek for mining and other purposes ■ at other localities than those for which their ditch was originally constructed, which was also true of Reynolds, Goodwin & Co., and Battenfield, while they respectively owned the ditch.
The defendant’s ditch was dug in August or September,-1851, and prior to any change in the use. of the water by plaintiffs’ first grantors.
The foregoing are all the facts that are useful in illustrating the points made upon the evidence. The other facts bear more especially upon the question of the Statute of Limitations, and will be noticed hereafter.
The fact that the plaintiffs’ ditch was dug and their appropriation first made solely for working certain mining claims, long since worked out and abandoned, gives rise to the principal question. In view of that fact it is claimed that the plaintiffs’ first grantors lost their right to the use of the waters of the creek the moment the purpose for which they first appropriated them had become accomplished,’ and that neither they nor their grantors could thereafter rightfully claim the use of the water, on the score of their original appropriation, for the purpose of working other claims, and that hence, conceding the original appropriation of the plaintiffs to have been prior to that of the defendant, the relative rights of the parties became changed when the original object of the plaintiffs had been accomplished, and thereafter the defendant became first in right and the plaintiffs second..
How far a party’s right to the use of water is limited by the object for which it was first appropriated arose in the case of Maeris v. Bicknell, 7 Cal. 261. Mr. Justice Burnett, [33]*33by whom the opinion of the Court was delivered, said : “ The next question which arises in this case is, whether a party who makes a prior appropriation of water can change the place of its use without losing that priority as against those whose rights have attached before the change. This question we think can admit of but one answer. It would seem clear that a mere change in the use of water, from one mining locality to another, by the extension of the ditch, or by the construction of branches of the same ditch, would by no means affect the prior right of the party. It would destroy the utility of such works were any other rule adopted. As to the question whether a party can change the use of the water from one purpose to another without affecting his prior right, we express no opinion, as the point- does not arise in this case.”
Some doubt as to the soundness of this view seems to have been afterwards entertained, but for what reason we are at a loss to perceive. In McKinney v. Smith, 21 Cal. 383, Mr. Justice Horton said: “ We are aware that in the case of Maeris v. Bicknell it was decided that a party who makes an appropriation of water can change the place of its use, as by an extension of the ditch, without losing his priority as against those whose rights have attached before the change, but the Court expressly reserved the expression of any opinion whether a party could change "the use of the water from one purpose to another without losing his priority. * * * There may be difficulty, in many cases, in determining that the appropriation was limited to a special purpose or to a particular locality. Each case must be decided upon its peculiar facts. * * * On the facts as they existed when the defendants began their works they had the right to appropriate the water to any use that would not interfere with the plaintiffs’ use of it for the special purpose to which they had appropriated it.”
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By the Court, Sanderson, J.:
Action to restrain the defendant from diverting the waters of Mormon Creek, in Tuolumne County, to the prejudice of the plaintiffs’ prior rights, and for damages already sustained. The case was tried with a jury in the Court below, and a general verdict in favor of the plaintiffs was rendered. Under the direction of the Court, the jury also rendered a special verdict, in view of which it was claimed by the defendant that the judgment should go with him. The Court held otherwise, and rendered a judgment for the plaintiffs for the amount of damages found.by the jury, and perpetually restraining the defendant from interfering with or diverting the waters of the creek at any time in such a manner as to interrupt or disturb the use of the plaintiffs to the extent of their interest therein, which was fixed at sixty-two inches. A motion for a new trial was made and denied.
The complaint is in the usual form in such cases. An appropriation and continuous use of the waters of Mormon Creek, running as far back as the spring of 1851, for mining and agricultural purposes, by means of a ditch dug for that purpose, is alleged; and also a subsequent diversion of the water to the prejudice of the plaintiffs by defendant, by means of a ditch which taps the creek at a point above that of the plaintiffs.
[31]*31The defendant denies the prior right of the plaintiffs, and sets up a prior right in himself, and avers an appropriation and continuous use of the waters of the creek to the capacity of his ditch, which is four hundred inches, for mining and agricultural purposes, from a date prior to the appropriation of the plaintiffs.
The defendant further alleges that the plaintiffs’ ditch was dug out and the waters of the creek appropriated by them or their grantors solely for the purpose of working a few mining claims which belonged to the first owners of the ditch; and that said claims were worked out, and, together with the ditch, abandoned by the then owners long prior to the time at which the plaintiffs became the owners or possessors of the ditch.
He further avers that he and his grantors have been in the quiet and peaceable possession of the waters of the creek to the full capacity of his ditch for about thirteen years, prior to the commencement of this action, without let or hindrance on the part of the plaintiffs or their grantors.
He also seeks the protection of the Statute of Limitations, and avers that neither the plaintiffs nor their grantors have been in the possession of the waters of the creek within five years next preceding the commencement of this action, except in subordination to the alleged right of the defendant to divert the same to the extent of four hundred inches.
Ho exceptions were taken to the admissibility of evidence, and all the questions made by counsel relate to the law of the case, as applicable to the facts specially found by the jury, and as construed by the Court in refusing and giving instructions.
The plaintiffs’ ditch was dug in March or April, 1851, and sixty-two inches of the waters of the creek thereby appropriated. The ditch was dug and said appropriation made solely for the purpose of working certain mining claims which belonged to the parties by whom the ditch was dug; and said purpose was fully accomplished prior to the fifth of July, 1855, which was the date at which the ditch was sold to Reynolds, Goodwin & Co., by whom the ditch was extended [32]*32and afterwards sold to Battenfield in May, 1858, who after-wards sold to plaintiffs on the tenth of February, 1864. More than two years intervened between the daté at which the mining claims were worked out and abandoned and the first sale of the ditch; during which time the owners made no use of the ditch, but went to other parts, leaving the ditch, however, in the care of one Demple, with license to use the same. The plaintiffs now use and seek to use the waters of the creek for mining and other purposes ■ at other localities than those for which their ditch was originally constructed, which was also true of Reynolds, Goodwin & Co., and Battenfield, while they respectively owned the ditch.
The defendant’s ditch was dug in August or September,-1851, and prior to any change in the use. of the water by plaintiffs’ first grantors.
The foregoing are all the facts that are useful in illustrating the points made upon the evidence. The other facts bear more especially upon the question of the Statute of Limitations, and will be noticed hereafter.
The fact that the plaintiffs’ ditch was dug and their appropriation first made solely for working certain mining claims, long since worked out and abandoned, gives rise to the principal question. In view of that fact it is claimed that the plaintiffs’ first grantors lost their right to the use of the waters of the creek the moment the purpose for which they first appropriated them had become accomplished,’ and that neither they nor their grantors could thereafter rightfully claim the use of the water, on the score of their original appropriation, for the purpose of working other claims, and that hence, conceding the original appropriation of the plaintiffs to have been prior to that of the defendant, the relative rights of the parties became changed when the original object of the plaintiffs had been accomplished, and thereafter the defendant became first in right and the plaintiffs second..
How far a party’s right to the use of water is limited by the object for which it was first appropriated arose in the case of Maeris v. Bicknell, 7 Cal. 261. Mr. Justice Burnett, [33]*33by whom the opinion of the Court was delivered, said : “ The next question which arises in this case is, whether a party who makes a prior appropriation of water can change the place of its use without losing that priority as against those whose rights have attached before the change. This question we think can admit of but one answer. It would seem clear that a mere change in the use of water, from one mining locality to another, by the extension of the ditch, or by the construction of branches of the same ditch, would by no means affect the prior right of the party. It would destroy the utility of such works were any other rule adopted. As to the question whether a party can change the use of the water from one purpose to another without affecting his prior right, we express no opinion, as the point- does not arise in this case.”
Some doubt as to the soundness of this view seems to have been afterwards entertained, but for what reason we are at a loss to perceive. In McKinney v. Smith, 21 Cal. 383, Mr. Justice Horton said: “ We are aware that in the case of Maeris v. Bicknell it was decided that a party who makes an appropriation of water can change the place of its use, as by an extension of the ditch, without losing his priority as against those whose rights have attached before the change, but the Court expressly reserved the expression of any opinion whether a party could change "the use of the water from one purpose to another without losing his priority. * * * There may be difficulty, in many cases, in determining that the appropriation was limited to a special purpose or to a particular locality. Each case must be decided upon its peculiar facts. * * * On the facts as they existed when the defendants began their works they had the right to appropriate the water to any use that would not interfere with the plaintiffs’ use of it for the special purpose to which they had appropriated it.”
Suppose a party taps a stream of water for the purpose of surface mining in a given locality, and afterwards finds that [34]*34the ground will not pay or that ground further on will pay better, may he- not abandon the former and extend his ditch to the latter without losing his priority ? Or suppose, after working off the surface, he finds quartz, may he not erect a mill and convert the water into a motive power without forfeiting his prior right? Suppose he appropriates the water for the purpose of running a saw mill, and, after the timber is exhausted, he finds that a grist mill will pay—may he not convert the former into the latter without surrendering his priority to some one who may have subsequently and in the meantime tapped the same stream ?
We think all this may be done, and are unable to suggest a plausible reason why it may not. In cases like the present a party acquires a right to a given quantity of water by appropriation and use, and he loses that right by nonuse or abandonment. Appropriation, use and nonuse are the tests of his right; and place of use and character of use are not. When he has made his appropriation he becomes entitled to the use of the quantity which he has appropriated at any place where he may choose to convey it, and for any useful and beneficial purpose to which he may choose to apply it. Any other rule would lead to ’endless complications and most materially impair the value of water rights and privileges. The water rights involved in this case may not be of great value, and their acquisition may not have been attended with much expense, but there are many similar privileges which have been secured only by the use of large sums of money, and to hold that they are limited to the particular place or to the particular purpose in view of which they were first sought would, for obvious reasons, lead to most pernicious results and greatly delay and embarrass the development of the resources of the country.
^ The only question which can legitimately arise in connection with the facts under consideration is abandonment. The fact that the water was appropriated solely for a special and particular purpose, and the further fact that that purpose had v been fully accomplished, and the further fact that the parties [35]*35concerned in it had dispersed to other parts, and that more than two years were allowed to pass without their giving any attention to the ditch, and then only to make a sale of it to others at the nominal sum of twenty-five dollars, all bear directly on that question. In view of those facts, a jury might find abandonment, and in that event the subsequent sale to Reynolds, Goodwin & Co., whether in good faith or not, would not have revived the right which was secured by the first appropriation.
There was testimony tending to' show that the defendant had been in the adverse possession of the water of Mormon Creek, as against the plaintiffs and their grantors, to the capacity of his ditch, for more than five years prior to the commencement of the action, and the instruction asked by the defendant bearing upon the Statute of Limitations ought to have been given. Although the plaintiffs may have had the prior right, yet if they or their grantors allowed the defendant to acquire and hold for five years adverse possession of the water which they had appropriated, or any part thereof, they, to that extent, lost their right by force of the statute. Upon this question, in The Union Water Company v. Crary, 25 Cal. 509, we had occasion to say that “ The right of the first appropriator may be lost, in whole, or in some limited portions, by the adverse possession of another. And when such person has had the continued, uninterrupted and adverse enjoyment of the watercourse, or of some certain portion of it, during the period limited by the Statute of Limitations for entry upon lands, the law will presume a grant of the right so held and enjoyed by him.”
The fact that the Tuolumne Water Company at one time turned water from their ditch into Mormon Creek, thereby increasing the volume of water, and the further fact that some strangers flumed the creek between the defendant’s ditch and that of the plaintiffs, have, as we conceive, no direct bearing upon the rights of either party. If the water of the Tuolumne ditch was turned in without any intention of recapture, it became publici juris and inured as much to the benefit of the [36]*36plaintiffs as the defendant. Their rights thereafter remained relatively the same as before, and were not differently affected than they would have been had the increase of water been due to some natural cause. So as to the fluming of the creek. If the effect was to decrease absorption and evaporation so that the creek thereafter would have delivered water at the plaintiff’s ditch at seasons when otherwise it would not have done so, the increased facilities inured as much to the benefit of the plaintiffs as if they too had resulted from some natural cause instead of the agency of strangers.
Nor was the adverse possession of the defendant, as against the plaintiffs, in any manner prejudiced by the fact that the defendant from time to time yielded to the demands of the miners at work below his ditch and allowed a certain quantity of water to flow down to them for their use. If that was the only reason why he allowed the water to pass, his doing so was no concession to the claim of the plaintiffs.
The order denying a new trial is reversed and a new trial is granted.