recognizing both riparian and some appropriated water rights
How later courts described this case
- recognizing both riparian and some appropriated water rights
- identifying origin of appropriation doctrine as local mining customs throughout the “Pacific Coast” during and subsequent to California gold rush
Written by the judges who cited it.
The opinion
Decided. 30 September, 1901.
On Motion for Rehearing.
Mr. Justice Moore
delivered the opinion.
8. A petition for a rehearing of this cause having been filed, it is contended therein that an error was committed in not awarding to the defendants the excess of water flowing in Willow Creek, after plaintiffs’ appropriation therefrom had been supplied, and hence the decree of the trial court should have been modified, and not affirmed. The decree complained of gives to the plaintiffs one hundred and ninety-five inches of the water of said creek prior to July 15 of each year, and one hundred and thirty inches thereafter, and enjoins the defendants from interfering with the flow of the water therein to that extent. The transcript shows that, except in the dry season, more water flows in the channel of the creek than is necessary for plaintiffs’ use. There is testimony, however, to the effect that several other appropriately acquired the right to use the water of that creek, who are not parties to this *76 suit, and can not, therefore, be prejudiced by the decree herein, notwithstanding which the court below inferentially, at least, gave to the defendants the use of the water flowing in the creek after plaintiffs’ appropriation was supplied. The defendants’ rights are necessarily subordinate to those of prior appropriators, and, inasmuch as the court is not at liberty to determine the question of priority between appropriators not parties and the defendants, the latter are not entitled to an affirmative decree settling their rights, and hence the petition must be denied
Rehearing Denied.