Mr. Chief Justice Murray and Mr. Justice Terry concurred.
Possession, or actual appropriation, must be the test of priority in all claims to the use of water, whenever such claims are not dependent upon the ownership of the land through which the water flows.
Such appropriation cannot be constructive, because there would be no rule to limit or control it, resting, as it must, only in intention. The principle, as laid down in Eddy v. Simpson. 3 Cal. R., 249, must this case.
The design of the defendants, two years before, to appropriate Alder Creek as a connecting link of their enterprise, could not give them exclusive rights until it was executed, because it is not the intention to possess, but the actual possession, which gives the right. And so, in the case of Barnes v. Starke, cited by appellants, the doctrine of relation, as between the acts of the plaintiff, first and last, was simply to the and not to the intention of
The purchase, by the defendants, of Walker’s dam, was an actual appropriation of the waters of the creek so far, but no further; and until they built a dam below, in order to make a further appropriation, any one else had the right to do so. If they had commenced first to build the dam in good faith, then, although their power of enjoyment would not commence until its completion, yet the right, as against others, would bear relation to the time of commencement; and this is all that the principle in Barnes v. Starke amounts to.
Judgment affirmed.