Page:Federal Reporter, 1st Series, Volume 4.djvu/808

 794 FEDERAL REPORTER �ply the races of both mills, and the defendant Carter Cotton, continuing to divert the same for the use of his rnill, this bill was filed by plaintifFs in the district court of Larimer county^ on the first of September, to restrain such diversion. Aii injunction was allowedin that court, and subsequently mucb testimony was taken by a referee before the case was removed inito this court; and uponthat evidence and the pleadinga tha present motion to dissolve the injunction is founded, �Upon ail the evidence it may be said that there is not at ail timeB in the river sufficient water to run both mills, unless the same water can be used for both of them. Such was the condition of the river when the bill was filed, and it seems that it was in the same condition during last winter. And the right of plaintifs tô take water from the river tbrough their race, as they and their grantors have done for many years, is not denied ; so that it may be assumed that at the head of their race, and thence down to their mill, they are entitled to the use of the water as riparian owners. Defendants may have the same right at the point where they take the water from the river, and thence down to the head of plaintififs' race, where, upon familiar principles, they are bound to return the water to the channel of the river for plaintiffs' use. Conceding, then, plaintiffs' right to divert the water and use it as claimed, defendant Carter Cotton cannot assert a right to the use of it lower down the river, and within the territory already conceded to plaintiffs ; for eaeh riparian owner has a right, within his own territory, to the use of the water as it flows, returning it to the channel of the river for the use of others below; and, at the point where defendants' mill is located, that right is apparently in the plaintiffs. Manifestîy, then, the defence to this suit, if any exists, is to be found in the circumstance, if it can be estab- lished, that the same water may be used for both mills, with- out serious detriment or hindrance to either. And that will not be an absolute and full defence; because, as before stated, the right of the plaintiffs in the use of the water, as they nave hitberto enjoyed it, appears to be clear. But if it is seen that the water may be conveniently used by both ����