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Show 168 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES privileges-mining and diverting water-were equally conferred and stood on an equal footing.36 On the public domain, therefore, the right to the use of running water existed without private ownership of the soil, on the basis either of prior location on the land or of prior appropriation and use of the water,37 conflicts between land claimants and water claimants being decided by the fact of priority in time of either land location or water diversion.38 Relative rights of appropriators.-The first appropriator of water for mining or other beneficial purposes was recognized in the local communities as having, to the extent of actual use, the better right. And priority of appropriation-a fundamental feature of the appropriation doctrine-was repeatedly recognized in specific terms by the courts in the early California water cases.39 The priority principle was applied in the first California cases as between appropriators of water for mining purposes,40 and was soon extended to other purposes as well. This extension required the authority of the courts, for in the mining areas it was argued that a prior appropriation could be made solely for the purpose of mining and there was as yet no Federal or State legislation on the subject. Thus, in one controversy, the right to use the water of a stream was claimed by a prior appropriator for operating a sawmill and by a subsequent appropriator for working mines.41 The upstream mining diversions from a water supply insufficient for both claimants prevented operation of the mill for 5 months of the year. The California Supreme Court resolved the vital issue by affirming the judgment of the trial court in issuing an injunction against the miners. The ground for this decision was that under the State policy the prior appropriation of either land or water on the public domain entitled the holder to protection in its quiet enjoyment. In a later California case, the plaintiff, a prior appropriator of water, had constructed a reservoir for impounding the waters of a ravine for the purpose of irrigating a garden and fruit trees on the public domain.42 Defendants entered the enclosed premises, proceeded to dig and sluice the same for mining purposes, and threatened to divert the water from plaintiff's reservoir. The supreme court decided that regardless of the rights of defendants to enter public lands for mining purposes,43 the threatened diversion of water from the 36Irwin v. Phillips, 5 Cal. 140, 147 (1855). 37Hill v. Newman, 5 Cal. 445, 446 (1855). 38Irwin v.Phillips, 5 Cal. 140, 147 (1855); Crandall v. Woods, 8 Cal. 136,144 (1857). 39 See Stiles v. Laird, 5 Cal. 120, 122 (1855);Hill v. Newman, 5 Cal. 445, 446 (1855); Hill v. King, 8 Cal. 336, 337, 338 (1857). See also Jennison v. Kirk, 98 U. S. 453, 458 (1879). 40Eddy v. Simpson, 3 Cal. 249, 252 (1853). 41 Tartar v. Spring Creek Water & Min. Co., 5 Cal. 395, 397-399 (1855). "Rupley v. Welch, 23 Cal. 452, 455-457 (1863). 43 An exception from the right of the prior appropriator of water to be protected against all the world but the true owner was expressed in early California State legislation requiring the agriculturist to yield to the miner under certain circumstances: Cal. Stat. ch. 82 (1852); Stat. ch. 119 (1855). |