Where a party suffers damage from the breaking of a canal constructed prior to the location of his claim, if there be no actual negligence on the part of the canal owners, or no other negligence than such as the law would presume from the mere breaking of the canal, the owners will not be responsible for such damage. The principle seems to be that one who chooses to locate his claim along the line of a ditch already established, does so at the risk of any accidental injury from the same, not caused by the actual neglect of the owners.' He who has first located his mining claim on the bank of a stream has the right to use the bed of the stream for the purpose of fluming or working his claim, and any subsequent erection, dam, or embankment, which will turn the water back upon such claim, or hinder it from being worked with flumes or other necessary means or appliances, is an encroachment upon the rights of said first occupant, who is entitled to recover all damages consequent on such obstructions." The first appropriator of water for mining purposes is entitled to have the water flow without material interruption in its natural channel. And he is entitled to the water so undiminished in quantity as to leave sufficient to fill his ditch as it existed at the time of the subsequent appropriation of the stream above him. As to any deterioration in the quality of the water, by reason of being used for mining purposes, before it reaches the ditch of the prior locator, it would not seem to be such a damage as any recovery can be had for." And parties are not limited to the amount and quantity of water which they may have turned into their ditch in the first instance, unless, by its general size, plan, &c., it was incapable at the time of carrying more water than was at first appropriated. They may at any reasonable time afterward use more water, if necessary, in order to fill the ditch to its original capacity. But if they continue to use only the original quantity long enough to indicate that they intended to appropriate no more, they would be limited to that quantity.* 1 Tenney v. Miners' Ditch Co. 7 Cal. 885. Sims v. Smith, 7 Cal. R. 148. Bear River W. and M. Company . York Mining Company, 8 Cal. 327. 4 White v. Todd's Valley Water Co. 8 Cal. 443. IV. MISCELLANEOUS MATTERS CONNECTED with the GenERAL SUBJECT. The sale and transfer of a mining claim, or water right, should be by deed under seal, the latter being a right running with the land, and, having none of the characteristics of a mere personality, must be conveyed with the same formalities as real estate. The question as to the sufficiency of a mere bill of sale to transfer a mining claim has been raised in several cases coming before the Supreme Court of this state, and though not specifically adjudicated, the opinion of the court seemed to be that a transfer by bill of sale was insufficient.' The interest of a miner in his claim is property, and may be taken and sold under execution.' His pay dirt, and tailings, which are the productions of his labor, are in like manner his property.' It would seem that school law warrants may be located upon any of the mineral lands in the state, the act of May 3, 1852, appearing to make no exception or reservation of mineral lands." To shut off a useful element from one's premises, is as much a nuisance as to turn upon them a destructive one; and a ditch to carry off water rightfully flowing to a mining claim, is as much a nuisance as a drain to flood it." Rights to the use of water become fixed, after five years' adverse enjoyment of the same." The owner of a ditch is bound to use that degree of care in its construction and management to prevent injury to others, which ordinarily prudent men use in similar instances, when the risk is their own; and the question of negligence must in a great measure depend upon the facts and circumstances of each particular case." In regard to the doctrine of fixtures upon public mineral lands, the Supreme Court held, in the case of Merritt vs. Judd, July term, 1859, that where machinery is erected upon a claim by a tenant, for the purpose of extracting the gold, and is necessary for that purpose, such machinery is considered as attached permanently to the soil, to aid in effecting the object for which it is 1 Hill v. Newman, 5 Cal. R. 445; McCarron v. O'Connell, 7 Cal. R. 152. 2 McKeon v. Bisbee, 9 Cal. R. 187. * Jones v. Jackson, 9 Cal. R. 237. Nims v. Johnson, 7 Cal. R. 110. Parke v. Kilham, 8 Cal. 77. 7 Wolf v. St. Louis Water Co. 10 Cal. 541. valuable, and passes to the landlord as a fixture annexed to the freehold, if the tenant fails to remove it during the term; that these claims, having been regarded from an early period of our state jurisprudence as titles, are clearly entitled to the incidents of estates of freehold in respect to this matter. FORMS. Notice of Claim of Mining Land. NOTICE (RENEWED.) The Mountain Brow Tunnel and Mining Company claim 1,600 feet of this ground for mining purposes, being at the rate of 100 feet per man, running from this in a northerly direction 320 feet to a pile of rock and a stake; from thence 500 feet in a westerly direction to a pile of rock and a stake; from thence 320 feet in a southerly direction to a pile of rock and a stake; from thence 500 feet in an easterly direction to this, the place of beginning. Located April, 1855. Table Mountain, Tuolumne County. A. B., Č. D., Another Form. NOTICE. We, the undersigned, claim 1,200 feet mining, this being the south-east corner. Shaw's Flats, Nov. 18th, 1857. of this ground for A. B., C. D., &c., &c. Renewal Notice of Claim of Mining Lands. NOTICE. December 1st, 1851. This is to certify that the Ophir Company lays this ground over until the first day of May, by renewing the notice and names, and recording this ground under Shaw's Flat law. The undersigned claim six hundred (600) feet of this ground. J. T. GILLAM. A. GOULD. J. FALLS. J. DONNELLA. A. FLEEHART. Transfer of Mining Claim. State of California, Tuolumne County. S Know all men by these presents, that we, the undersigned, a duly appointed and authorized committee, and president and sec retary of the Mountain Brow Tunnel Company, have, for and in consideration of the sum of one thousand dollars, to us in hand. paid, the receipt whereof is hereby acknowledged, sold, transferred and quit-claimed unto I. R. Marston and Charles Wessel, members of the Crystal Spring Company, all our right, title and interest in and to the following-described mining grounds, situated in the county and state aforesaid, district of Table Mountain, located by said Mountain Brow Company in January, A. D. 1855, as per records of said mining district, and more particularly described as follows: commencing at the Mountain Brow saw-mill, thence running in a south-easterly direction, toward the diggings on Shaw's Flat, to a blazed oak-tree; thence down the mountain to a stake and stones, being the north-east corner of Mountain Brow claim; thence running westerly, following the north line of the Mountain Brow claim to the north-west corner of said Mountain Brow claim; thence southerly, following west line of Mountain Brow claim, to south-west corner of Mountain Brow claim; thence easterly, following south line of Mountain Brow claim, to a stake and stones, being the south-east corner of Mountain Brow claim, about twenty steps from a large pine-tree blazed on south side; thence running westerly across the mountain to an oak stump on Mormon Creek, being north-west corner of the Vírginia Tunnel Company; from thence to the saw-mill, the place of beginning; or, in other words, we sell, transfer and quit-claim unto said Crystal Spring Company all the ground originally claimed by the Mountain Brow Company in January, 1855, with the exception of 1,600 feet located in the south-east corner of said. claim, being 320 feet wide and 500 feet long, as per corners hereinbefore mentioned and designated, and herewith deliver full possession of said ground to said Crystal Spring Company. In testimony whereof, we have hereunto set our hands and seals, this 20th April, A. D. 1857. EUGENE B. DRAKE, [L. S.] [L. S.] D. ROBERTSON, Secretary. Assignment of Mining Claim (commonly termed Bill of Sale). Henry Jackson having purchased my mining claim in the county of Tuolumne for two thousand dollars, which money he has paid me, I, Charles Grant, do hereby sell and transfer to him the said claim, which is described as follows: [here insert description,] together with all the tools and implements now being in the shanty erected thereon, and together with said shanty and all improvements and every species of property thereon. And I do guarantee that I am the true owner of said claim, and that I hold and herewith transfer to said Henry Jackson full and undisputed possession thereof, and that in taking up, maintaining and working said claim I have complied in every respect with the mining rules, regulations and customs of the district. Witness my hand and seal, August 9th, 1859. CHAS. GRANT. [L. 8.] Surety Bond to Perform Mining Contract. State of California, ) California,} SS: Know all men by these presents, that we, A. B., and C. D., of the Crystal Spring Mining Company, of the county and state aforesaid, are held and firmly bound unto E. F. et. al., of the Mountain Brow Mining Company, of the same place, in the sum of ten thousand dollars ($10,000), lawful money of the United States, to be paid to the said E. F. et. al., their heirs, administrators or assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors and administrators firmly by these presents. Sealed with our seals, and dated this 20th of April, A. D. 1857. The condition of the above obligation is such that if the above bounden A. B. and C. D. shall well, faithfully, fully and truly fulfil and execute the requirements and covenants of a certain article of agreement, made and entered into by and between the said A. B. and C. D., of the Crystal Spring Mining Company, a party of the second part, and the said E. F. et. al., of the Mountain Brow Mining Company, a party of the first part, dated on the 20th day of April, A. D. 1857, and in which agreement this bond is hereunto referred and made a portion of said agreement, according to its tenor and meaning, then this obligation shall be null and void; otherwise to remain in full force and virtue. In testimony whereof we have hereunto set our hands and seals this 20th day of April, A. D. 1857. A. B. [I. S.] C. D. [L. S.] In consideration of the premises, and one dollar to me paid, I hereby bind myself as surety on the foregoing bond for A. B., this 20th day of April, A. D. 1857. G. H. In consideration of the premises, and one dollar to me paid, I hereby bind myself as surety for the foregoing bond for C. D., this 20th day of April, A. D. 1857. Agreement of Indemnity. J. K. This article witnesses: Whereas, the Moquelumne Hill Canal and Mining Company have executed a mortgage on the canal, flumes, ditches, and the works, franchises, rights, interests and |