If a mill site is timbered, the lawful claimant may cut and remove the timber thereon for the purpose of constructing a mill, reduction works, tramways, or other accessory required in the development of his mining interests. A. B. Page, 1 L. D. 614 (1883). The locators of mining claims, being invested by Congress with "the exclusive right of possession and enjoyment of all the surface included within the lines of their location," have a property therein capable of protection in the courts. They must care for their own. If a stranger trespasses by cutting and using timber, the locator must protect himself. He cannot look to the government to bring suit. Lewis Smith, 1 L. D. 615 (1882). "All other mineral districts," etc. (act of June 3, 1878), include the mineral districts of California,' and all privileges under chapter 150 to fell timber for mining, agricultural, and domestic purposes attach to citizens and residents of those districts. In addition to the privileges conferred on citizens and residents, under chapter 150, the miner and agriculturist within the mineral districts of California are permitted, under section 4 of chapter 151, to go upon the non-mineral public lands to procure such timber as they may respectively need for use in the development of their mining claims or for the improvement of their farms, should there not be upon their respective claims or farms a sufficient amount of timber for the uses and purposes specified. In the procurement of such timber from the non-mineral lands they are restricted to the cutting and removing of such timber only as may be actually required for the development and improvement of their particular claims and farms, or they may employ others to procure such timber for them, provided such persons engaged or employed in supplying such timber to the parties lawfully authorized to use the same for the purposes indicated, shall not, under color of such employment, engage in cutting or removing any timber from the public lands for their own private gain or for commercial speculation. 1 L. D. 616 (1882). The cutting or removing of timber from mineral lands is permitted for the following purposes, viz. mining, agricultural, and domestic purposes, but not for exportation from the State or Territory where cut; also the cutting and removing of timber from non-mineral public lands is only allowed when the material is used in the actual development or improvement of the mine or farm of the particular person for whom the cutting or removing is done. P. D. Hurlbut, 1 L. D. 618 (1882). Where coal suitable for fuel exists in the neighborhood, timber needed for use in the mines near by should not be cut from the public land as an article of fuel. H. M. Gregg, 2 L. D. 827 (1883). Coal lands are not mineral lands within the meaning of the act of June 3, 1878, authorizing the felling of timber upon lands in Colorado, Nevada, and the Territories for mining and domestic purposes. "It will be observed that the act referred to is restricted in its operations to lands subject to entry under the mining laws, and that it is the character of the entry by which they may be appropriated, and not the character of the lands themselves, that determine the question as to whether timber may be cut there from under the provisions of said act for mining and domestic purposes." 2 L. D. 827 (1884). 1 Contra, United States v. Benjamin, 21 Fed. 285, ante. IV. TAILINGS AND REFUSE. A. Property therein and their Deposit on the Land. At common law the mine owner is bound to dispose of his refuse so as not to injure others; he may not deposit it on the lands of others, but must deposit it on his own land, or on the surface land beneath which his mines lie. Where the minerals are owned by one person and the soil by another, the former has a right to deposit his refuse upon the surface. This right is limited to the refuse of the mines beneath the particular surface estate, but it may, by the terms of the conveyance or contract, be enlarged to include that from adjoining mines. But he must make the deposit in such manner as to occasion the least possible damage to the surface. The mine owner is subject to the further obligation to make the deposit on his own land in such a manner that the refuse will not by the ordinary action of nature be carried upon the land of others. Where the refuse is liquid, as in the case of oil wells, the disposal of it is governed by the rules stated in the next subdivision in regard to the pollution of streams. A different rule from that at common law seems to have prevailed in those Western States where placer and hydraulic mining are carried on extensively. It was early held in California that a miner might appropriate a dumping ground of the public domain if he did not interfere with pre-existing rights. This land might subsequently be located as mining ground subject to the prior right of deposit, but not, however, to a subsequent one. The right to the use of such dumping ground may be lost by adverse possession. But even a prior locator must work his claim with reasonable care. In so doing he may, by the discharge of his tailings, do some necessary injury to subsequent locators on lower ground for which he will not be liable, provided he does not thereby destroy the value of the latter claims or prevent the mining of them. But he may not let his tailings unrestrained run down a natural channel, without regard to the damage they may do. A custom to do so will not justify it. In Colorado this subject is regulated by statute,2 by which it is made the duty of every miner to take care of his own tailings 1 Page 613, post. 2 M. A. S. 3144. on his own property, or become responsible for all damages that may arise therefrom. The measure of damages for depositing refuse on the ground of another is the cost of removal, but no larger amount than the value of the lot can be recovered. The tailings or refuse of a mine are the property of the mine owner. This property he may, however, abandon, either by casting the refuse away, or by suffering it to go where it will unobstructed. If it flow upon the land of another, he is entitled to it. When once abandoned, any one may appropriate it, provided it is not reclaimed before this appropriation. The original owner may reclaim it, though another with a view to its appropriation has incurred expense. The latter's right is contingent upon continued abandonment, and the owner is not obliged to continue the abandonment. Where tailings have been deposited upon public lands, which have no value except for such tailings, the land may be located as mineral land, a possessory title to it may be gained in the same way as to mineral lands, and the holder of such a title may recover damages against any one removing the tailings. The obligation of a lessee as to tailings and refuse, and his property therein, are governed by the terms of his contract. As a lessee's right is generally to take mineral of specified kinds, he has, in the absence of provision to that effect, no right to tailings; these are the property of the owner. A covenant in a lease to remove all rubbish at the end of the term applies only to such as result from the operations during the lease. In several of the States the right of eminent domain has been conferred upon mine owners to take rights of way for the purpose of conducting their tailings away from their mines, and even to take ground for places on which to dump their refuse.1 A proceeding under the California statute was held unconstitutional as an attempt to take property for private uses. California. Jones v. Jackson, 9, 237 (1858). The pay dirt, and tailings of a miner, which are the products of his labor, are his property. When a place of deposit for tailings is necessary to the working of a mine (as where the deposit is of such a character that the first washings only extract a portion of the gold), there can be no doubt of the miner's right to appropriate such ground as may be neces1 California, Code Civ. Proc. 1238; 3142; Montana, Pol. Code 1895, secs. 3630Georgia, Code 1882, art. 7, secs. 742- 41; Code Civ. Proc. 1895, sec. 2211; Utah, 753; Idaho, Rev. Stats. 1887, secs. 3130, Act March 12, 1890, c. 37. sary for this purpose; provided he does not interfere with pre-existing rights. His intention to appropriate such ground must be clearly manifested by outward acts. Mere posting notices is not sufficient. He must claim the place of deposit as such or as a mining claim. To suffer the tailings to flow where they list without obstructions to confine them within the proper limit, is conclusive evidence of abandonment, unless there is some peculiarity in the locality constituting an exception to this rule. If no artificial obstruction is required to confine them within the proper limits, then notice is necessary. miner allows his tailings to mingle with those of other miners, this does not give a stranger a right to the mixed mass. Where tailings are allowed to flow upon the claim of another, he is entitled to them. If a O'Keiffe v. Cunningham, 9, 589 (1858). One party may locate ground in a mineral district for fluming purposes, and another may at the same or another time locate the ground for mining purposes. The locations, being for different purposes, will not conflict. A party may locate a claim for mining purposes on land which has been and still is used as a place of deposit for tailings by another. His mining right will be subject to this prior right of deposit, but not to that of a third party, who subsequently attempts to use the land as a place of deposit for his tailings. Esmond v. Chew, 15, 137 (1860). The owner of mining claims situated in the bed of a cañon has not the right to build a flume and deposit tailings upon the claim of another subsequently located below him, on the ground of necessity. It was error for the court below to charge "that a person first locating a mining claim in the bed of a stream is entitled to the channel below as an outlet, and that when such outlet from the usual mining operations above becomes obstructed he may open the same, and if he can do so by no other means, may construct a flume down the channel as far as necessary, and as far as the same can be constructed without considerable damages to the claims subsequently located." Logan v. Driscoll, 19, 623 (1862). Plaintiffs owned mining claims in the bed of a creek, defendants owned claims upon the hill above, in working which they caused large quantities of rock and earth to rush down the hill by the force of the water which they used, covering up and destroying the plaintiffs' works, and rendering it impossible for them to use their claims. It was not error to charge that a subsequent locator had no right to so work and use his claim as to deprive a prior locator of the use of his claim, that such a use was unreasonable, and in such a case the rule of first in time, first in right, applied. Plaintiff being the prior locator, was entitled to damages and an injunction. Dougherty v. Creary, 30, 290 (1866). If miners engaged in washing. their claims with water abandon the water and tailings which pass from their mining grounds, any other persons have a right to take and appropriate the same to their own use, but their right is contingent on the fact of continued abandonment. It does not become obligatory on the persons abandoning to continue to do so, even though other persons, encouraged by the circumstance of abandonment for a time, have incurred the expense of constructing flumes to use the abandoned water and tailings. Gregory v. Harris, 43, 38 (1872). A party mining upon a ravine which runs into another ravine is not clothed by virtue of his right to use the ravine upon which he is mining as an outlet for his tailings, with the general right to break in at any point he may select upon the tail-race of another constructed in the other ravine, and to discharge his tailings therein. Consolidated Channel Co. v. C. P. R. Co., 51, 269 (1876). Code Civil Proc., sec. 1238, subd. 5, provides for the exercise of the right of eminent domain in behalf of "tunnels, ditches, flumes, pipes, and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from the mines." A mining company sought to have land of a railroad condemned under this act for the purpose of building a flume and having a place to dump tailings. A demurrer to the complaint was sustained on the ground that the proceeding was unconstitutional, as taking property for private uses. McLaughlin v. Del Re, 16 Pac. 881 (1886). In an action to recover damages for dumping tailings upon plaintiff's land, and for an injunction to restrain a continuance of such injury, a judgment for the plaintiff is supported by the finding that the plaintiff had for more than ten years been in open, notorious, exclusive, and adverse possession of the land, though it was originally claimed for a dumping ground, under miners' regulations, by the defendant's grantors. Fuller v. Swan River Min. Co., 12, 12 (1888). Under Colorado. M. A. S., 3144, miners must take care of their tailings on their own property. Evidence of a custom to dump their tailings on their own ground, and let them take care of themselves, is insufficient to prevent the issuing of an injunction against the washing of tailings upon plaintiff's claim. Nothing but plaintiff's consent will excuse this act. Ralston v. Plowman, 1, 595 (1875). Plaintiff built a flume, Idaho. through which he discharged his tailings on the ground of defendant, who was a prior locator. The latter built a flume entirely on his own ground, and his tailings filled up the plaintiff's flume. Held, plaintiff has no right of action, so long as he was not prevented from dumping on his own ground. Illinois. McGoon v. Ankeny, 11, 558 (1850). One who having made slag, and considering it worthless, casts it away with the intention of abandoning it, thereby divests himself of the title, and any person may appropriate it, the original owner having no more right to complain than if he had never owned it, unless he reclaimed it without violating the rights of others, and before its appropriation by others. Coppinger v. Armstrong, 5 Ap. 637 (1880). A covenant by the lessee in a lease of land with the right to use rock and burn lime, that all rubbish and spawls should be removed at the expiration of the term, is binding on the assignee of the lease. Coppinger v. Armstrong, 8 Ap. 210 (1881). But this covenant does not apply to rubbish and spawls on the premises at the execution of the lease, but only such as result from the operations under the lease. |