The only question involved in this case, is, whether the proprietors of a water-ditch can maintain an action against the subsequent locators of mining-claims for a deterioration or diminution of wafer so appropriated.
It has been repeatedly held by this Court, that as against those locating below the head of a ditch or point where the water is diverted from the stream, the owners of such ditch, if their appropriation of the water was prior to the location of mining or other claims had a superior right, and might protect it by the ordinary remedies known to the law. The only difference between this case, and those heretofore decided, consists in the fact, that the defendants’ claims are above and not below the head of the plaintiff’s ditch.
It is difficult to discover why the principle which governs one case should not be equally applicable to the other, or why, if the law gives to the first apropriator a right to the use of the water, pure and undiminished, as against the subsequent appropriator *338below, he should be allowed by a mere change of position to evade the consequences of the rule, and to place himself in a position which would destroy the rights of the first appropriator.
The right to appropriate the waters of the streams of this State, for mining and other purposes, has been too long settled to admit of any doubt or discussion at this time. Some of the older English authorities held that a right to water might be acquired by a riparian proprietor, by appropriation, and this Court might, with propriety, have maintained the rights of water-companies, on the ground that they were riparian owners; but it has based this right on the ground that the legislation of the State has given to every one, not only a privilege to work the “ gold placers,” but also to divert the streams for this and other purposes. The legislation of the State has been held to amount to a “general license to all,” (whether properly, is not for me to say, the point having been decided by a majority of the Court against my own opinion—see Conger v. Weaver, October 2, 1856,) and when these ditches have been constructed, they are regarded as a franchise or easement, belonging to the proprietors, and are entitled to protection as any other property.
The only test as between parties, where the lands belong to the United States, or this State, is priority of location, and whether a party locates above or below the claim of another, his right depends or originates in appropriation alone; he must take, subject to the higher right of those who were first in point of time to appropriate. If the parties both claimed as riparian proprietors, then each alike would be entitled to the reasonable use of the water for proper purposes. But in such ease the supra riparian proprietor must so do the same as to do his neighbor the least possible injury, and the general rule is, that each riparian proprietor is entitled to the free use of the waters, pure and undiminished, except the deterioration or diminution be so slight or unimportant as not to materially diminish the quantity or quality.
Testing the case by this rule, it might be asserted with confidence, that the facts of this case warranted a recovery. But when it is taken into consideration that the parties do not claim as owners of the soil, that none of the rules applicable to riparian proprietors apply, and that they both ground their respective rights upon their location; then, the rule which has been so often laid down by this Court, must apply, and he who has first diverted the waters of a stream, and appropriated them to his own use or purposes, must be held entitled to the exclusive enjoyment of the same, pure and undiminished. By this, we do not mean to say that those above him cannot use the water for any purpose; the use must be a reasonable one, and the injury or diminution small or inconsiderable. Any other rule would *339destroy this interest entirely, as it would enable any person, by locating above the head of a ditch, to destroy the value and utility of the same, and no man could count with safety upon his enterprise, unless he commenced at the source of the stream. The opposite rule would apply as well to the diversion, as to the deterioration of the water, and after large sums had been expended in constructing a ditch, any one might render the same worthless, by locating above, and asserting his right to divert the water. From these views it results, that the instructions of the Court below were erroneous.
Judgment reversed, and cause remanded.
On the application for a re-hearing,