In some of our sister States, also, the indorsement " a true bill" is held essential to the validity of the indictment, but the decisions in this respect have arisen from an adherence to the English rule, even after the English practice had gone out of use. (The State v. Freeman, 13 N. H. 488; The State v. Mertens, 14 Mo. 94.)

Judgment reversed, and cause remanded for a new trial.

[374]

*MCKINNEY et al. v. SMITH et al.

DIVERSION OF WATER WHEN NOT AN APPROPRIATION.-The diversion of the waters of a stream with the object of drainage simply, or without the intention of applying them to some useful purpose, does not constitute an appropriation. APPROPRIATION OF WATER LIMITED.-The taking up of the waters of a stream for a special limited purpose is an appropriation of only so much of the water as is necessary for that particular purpose. The surplus may be the subject of a new appropriation, which will give to the second locator a paramount right to the use of all the waters of the stream not required for the specific purpose of the first appropriation.

PRIOR RIGHT TO WATER LIMITED.-Plaintiffs constructed a dam across Clear Creek and dug a ditch for some distance along its bank, by means of which all the waters of the stream were diverted and returned to the creek at a point half a mile below. The object of the diversion was to drain the channel of the stream below the dam and supply water for working a tract of mining claims owned by plaintiffs in the bed of the stream. Subsequently defendants dug a ditch at a point above, through which they diverted the waters of the same stream for general mining purposes. Still later plaintiffs extended their ditch to other mining points and to agricultural land below, and used the water for mining and irrigating at these latter places. In an action by plaintiffs to recover for injuries occasioned by the diversion of defendants to the use of the water at the latter points to which plaintiffs' ditch had been extended: Held, that the prior right of plaintiffs was limited to the use of the water for working their original claims in the bed of the stream; that as to the surplus above what was required for that particular purpose, defendants' right was paramount; and that plaintiffs could not recover. COPY OF NOTICE OF LOCATION AS EVIDENCE.-In an action involving the right to and extent of a water privilege claimed by plaintiffs under an alleged appropriation by a number of copartners, defendants, to limit the extent of the appropriation, offered in evidence a paper, purporting to be a copy of the original locating notice of the copartners, and without direct proof of its execution, showed that it was prepared with a knowledge of some of the partners, and was seen as a posted

Rights of prior appropriation of water limited to the quantity actually required, commented on in Davis v. Gale, 32 Cal. 33; and cited as authority in N. C. & S. C. Co. v. Kidd, 37 Cal. 313. See 8 Kan. 322.

notice by a portion of them at the point of diversion, and about the time the work was commenced, and that its position was such that it must probably have been seen by all: Held, that upon this proof the paper was admissible as part of the res gesta.

NEW TRIAL, WHEN WILL BE DENIED.-A new trial will not be ordered because of inaccuracy in the language of a finding of fact when it is sufficiently distinct as to the material question involved in the action.

APPEAL from the Fifteenth Judicial District.

This action was originally commenced in the District Court of Shasta County, and before trial was transferred to the District Court of Tehama County, and by consent was tried by the Court without the intervention of a jury.

*The complaint alleges that the plaintiffs were, in [375] May, 1854, and prior thereto, the owners of a dam across Clear Creek in Shasta County, and of a ditch leading therefrom, and reservoirs connected therewith, constructed for the purpose of diverting and using for mining and agricultural purposes the waters of Clear Creek; that they also own a large tract of agricultural land, situated near the banks of the stream some distance below the dam, to which the ditch leads, and for irrigating which the waters of the stream are necessary; that subsequent to the appropriation of the waters of the stream by plaintiffs, the defendants, by means of a ditch dug by them from a point on Clear Creek some distance above plaintiffs' dam, diverted its waters and used them for mining purposes; that thereby the waters were diminished in quantity, and the portion which was returned to the stream was filled with mud and sediment, unfitting it for plaintiffs' use, and causing, by its deposits, injury to their ditches and reservoirs. For these injuries, damages were claimed in the sum of $20,000.

The answer denies generally all the allegations of the complaint, and avers a prior appropriation of the waters of the stream by defendants and their grantors, and that they have used the waters only for mining purposes, and returned them into the stream above plaintiffs' dam without any diminution in quality or quantity, except such as necessarily resulted from a careful and judicious use for mining purposes.

The evidence showed that in November, 1853, the plaintiffs built a dam across Clear Creek at the point claimed in the

complaint, and dug a ditch from this point along the bank of the stream to a cross ravine called Slate Gulch emptying into Clear Creek about one half mile below; that the ditch was of sufficient capacity to carry all the waters of the stream at their ordinary stage, and that in the following winter and spring they were all turned into and run through it to the channel of Slate Gulch, and down that channel to the bed of Clear Creek; that the defendants made no appropriation until the autumn of 1854, when they dug a ditch from the stream a number of miles above and diverted the water and used it for mining purposes; that subsequent to the location of de

fendants' ditch, the plaintiffs extended their ditch some [376] miles below and *used the water at points along the extension for mining and irrigating.

To show the character and extent of plaintiffs' original appropriation, defendants proved that plaintiffs at the time of the construction of their dam had mining claims in the bed of the stream immediately below, for the working of which it was necessary that the waters of the stream should be diverted, and offered in evidence what purported to be a copy of a notice recorded by plaintiffs in the Recorder's Office of Shasta County, which read as follows:

"Know all men whom it may concern, that we, the undersigned, have taken possession of a section or point on Clear Creek about one-half mile below Briggsville and about two hundred yards above the Norwegian Wheel, with the view and purpose of constructing and building a dam across said creek at said point, with the view of diverting and turning the water out of the bed of said stream at and below the said dam, in order to facilitate the working and the more effectually enabling us to work the bed of said stream below said dam to the extent of four claims, subject to equitable regulations. Nov. 10th, 1853." Signed with the names of the persons who composed the plaintiffs' company and who constructed the dam and ditch. No proof was made that any of plaintiffs' company signed this notice or posted it; but it was shown by witnesses that a notice of the same purport, and to the best of their judgment the original of this copy, was made out and posted at the point where the dam was made about the time the work upon it was commenced; that this notice remained

there for some time and was seen by a number of the members of the company and was in such position that it must probably have been seen by all. To the introduction of this notice the plaintiffs objected, on the ground that the preliminary proof failed to show that plaintiffs executed it or were bound by it. The objection was overruled, and plaintiffs excepted.

The plaintiffs on their part proved that some Norwegians had mining claims below the point where the dam was built and above the Slate Gulch, and that they assisted in constructing the dam and ditch under an agreement that they were to have a certain amount of water from the ditch for the purpose of working their claims, and that after the completion of the ditch to Slate Gulch *the water from [377] the ditch was used that season by plaintiffs' company

and by the Norwegians to wash the dirt in their respective claims.

The District Court found as a fact that the object of plaintiffs in building their original dam and ditch was to dispense with the water of the stream and drain the bed below, where their mining claims were located, and not to appropriate it for mining purposes, and as a conclusion of law, that the plaintiffs were not entitled to the relief sought. Judgment was entered for defendants. Plaintiffs moved for a new trial, which was denied, and from this order and the judgment they now appeal

W. H. Rhodes, for Appellants.

I. The Court erred in receiving in evidence the copy of a notice purporting to have been a copy taken from the Mining Record Book of Shasta County, for the following reasons:

1st. Because the copy of notice admitted was neither the original notice nor a copy taken from the original. The best evidence that the nature of the case admits must be resorted to, and this is the first rule of evidence in all cases. (1 Greenl. Ev., 3d ed., secs. 82, 85.) There is no statute or custom shown that miners' water notices in the district of Shasta must be recorded, in order to give them efficacy, nor any law, written or unwritten, that copies from such records can be read in evidence. The record itself, if the notice be admis

sible at all, with proof of the recording thereof, would be better evidence than the purported copy therefrom.

2d. Because the original was not proven. The copy even from official records cannot be read until proof of the original is shown. This proof is generally simplified by statutory regulations as by the authorized acknowledgments of the makers. It is not proven by the evidence in the case that the original notice was ever signed by a single one of the plaintiffs, or by any one through whom they claim.

3d. Because there was no evidence that the plaintiffs or their grantors, or any one or more of them, ever posted, or authorized the posting or publication, of any such notice.

Even if it had been shown that the plaintiff's had in a [378] private room subscribed the *notice, it would have been ineffectual for any purpose, unless they or some of them had authorized its publication.

4th. Because it was not shown that the defendants ever saw or knew even of the existence of such notice before they commenced their work; hence, they could not have been misled by it, nor can it now be used to the detriment of plaintiffs. (Duell v. Bear River Co., 5 Cal. 84.)

5th. The only purpose for which the notice was used was, in effect, as an estoppel against plaintiffs setting up any title at all to the water under their location in November, 1853. Now, an estoppel must be specially pleaded before it can be introduced into evidence, in order to prevent surprise and fraud. Here no such plea was set up, and therefore it was inadmissible under the pleadings. (Boggs v. Merced Mining Co., 14 Cal. 367; Hostler v. Hays, 3 Id. 307.)

6th. But the last and fatal objection to the introduction of this notice is to be found in the character of the notice itself, taken in connection with the proof of the time at which it was signed and posted. It is not a notice setting up a claim to water at all, but simply a regular miner's notice of the claims which those subscribing it intended to work. This was not the act under which the plaintiffs claimed the water, nor even one of them. The notice was simply intended to secure the bed of the creek below the dam for mining purposes. The mining law of this district did not require any notice at all to secure a water privilege. Taking up the point where the dam