are not on the ten acres. The plaintiff also avers, that he has suffered damages to the amount of two hundred dollars, from these acts of the defendants.

The answer directly admits some of these allegations, and the residue are to be taken as true, because the complaint is verified; and the answer only controverts them by a general, instead of a specific denial of each allegation: Civil Pr. Act, 48, 65.

But the answer sets up, as affirmative matter of defense, that the premises are public lands, and only held by the plaintiff by a possessory title, under the act entitled "An Act prescribing the mode of Maintaining and Defending Possessory Actions on Public Lands in this State," passed April 20, 1852; that they contained mines of precious metals; and that the defendants entered upon them for mining purposes; and that before making such entry they offered to ex ecute to the plaintiff their bond with good and sufficient surety, in accordance with the provisions of an act entitled "An Act to protect Owners of Growing Crops, Buildings, and other Improvements in the Mining Districts of this State," approved April 25, 1855; and that the plaintiff refused to accept the same; and they aver that they are now ready and willing to execute such bond, in accordance with the statute of 1855, aforesaid. These allegations of the answer are also to be taken as true, because they are not controverted by the replication: Civil Prac. Act, Sec. 65. A judgment was rendered in favor of the defendants, from which the plaintiff has appealed.

The main question involved in this case is the validity of the act of April 25, 1855; the defendants claiming that, having complied with the provisions of that act, they lawfully entered upon plaintiff's land, and were authorized to commit the acts complained of. The threatened diversion of water from plaintiff's reservoir is a clear violation of a vested right of property, acquired by the plaintiff by virtue of his prior appropriation of the water, and of which he can not be divested for any private purposes or for the benefit of a few private individuals.

But the injury to the growing crops presents a different question. The statute of 1852 relating to possessory actions,

provides that the possession of public land, containing mines of the precious metals, for agriculture and grazing purposes, shall not preclude the working of such mines by any person desiring to do so. The cultivation of the land, and raising crops of grain or grass, is a use of the land purely for agricultural and grazing purposes, and therefore clearly comes within the proviso of the act. The plaintiff's possession of the land was subject to this right of any person to enter upon the land, and work the mines of the precious metals thereon. This right of the miner has been fully recognized by this court, but it has invariably been held to apply only to the possession of public lands held purely for agricultural and grazing purposes, and not extended beyond them: 5 Cal. 36, 97, 308, 395; 14 Id. 380.

The act of April 25, 1855, provides that whenever any person shall, for mining purposes, desire to occupy or use any mineral lands then occupied by growing crops, etc., such person shall first give bond to the owner of the growing crop, etc., that the obligor shall pay to the obligee any damage sustained by reason of the destruction of the growing crops, etc., of the obligee. So far as this act relates to "growing crops," such as are usually raised upon lands used exclusively for agricultural or grazing purposes, it merely regulates a right previously vested in the miner, and to which the plaintiff's possession was subject; and to that extent, it is not liable to any constitutional objection. The right reserved to the miner, by the act of 1852, is subject to such regulations and restrictions as the legislature may see fit to impose; and the act of 1855 is but a regulation of that right, requiring a bond to be given before it can be exercised. The defendants in this case complied with the requirements of the act of 1855, so far as they could, by offering to give the proper bond, which the plaintiff refused to receive. This was all that the defendants were required to do, before entering upon the premises. They could not tender such a bond as the act requires, because the law requires the sum to be fixed by three disinterested persons, one of whom was to be selected by the plaintiff; and this he refused to do, by refusing to receive any bond. The entry of the defendants upon the land upon which the grow ing crops were, for mining purposes, was therefore lawful, and

can not properly be treated as a trespass. They are, however, liable for the damage to the growing crops caused by their acts; and if the plaintiff should demand of them the bond required by the statute, or they should refuse to pay the damages thus caused by them, they might then be restrained from all further working or trespassing upon the land. But no such case is presented by the record in this action.

It follows, from these views, that the court below erred in refusing the injunction against injuring the plaintiff's reservoir or diverting water therefrom.

The judgment is therefore reversed, and the cause remanded for further proceedings.

Reversed.

THE OREGON IRON Co. v. TRULLENGER.

(3 Oregon, 1. Circuit Court, 1867.)

Deed of water, below mill. A deed granting the right "to flow back the water to the foot of the present overshot wheel of the mill, and to use all the water which naturally flows below said mill." Held, to mean the water as it flows from the mill, after use by the mill.

Kes gesta; visible servitudes. To give effect to all parts of the instrument the surrounding circumstances, within the knowledge of the parties, must be considered; the references to the mill show an intent to allow its use to continue, and a purchaser must take with reference to all servitudes visibly attached at the time of sale. Detention exercised with reference to rights of lower proprietors. The right to use necessarily implies the right to detain, not to divert, the water; and this detention must be reasonable, and be exercised with reference to and in aid of the grant made to the lower mill.

It appears by the pleadings, that on the twenty-sixth of January, 1864, the defendant was owner of the land over which Sucker Creek flows, from Sucker Lake to the Wallamet River, and had then a mill and dam in use on said stream, a short distance below Sucker Lake.

It was admitted on the argument, that defendant's mill was propelled by a large breast-wheel, upon which water was then and is now discharged at different elevations, according to the stage of water and condition of the reservoir, ranging from seven feet above the natural surface of the lake, downward.

The defendant's dam was so situated as to be capable of

raising Sucker Lake seven feet above its natural surface, thus creating a reservoir of eight or ten hundred acres. And the condition and construction of the defendant's mill was such that it could be properly worked when the water of the lake was drawn down to a point one or two feet above the natural surface of the lake; and the defendant's flume was so constructed that the water could be drawn down to that point. There was fall enough in the creek for another water power "below the foot of the defendant's wheel."

On that day, the twenty-sixth of January, 1864, the defendant sold to H. D. Green, the plaintiff's grantor, a parcel of land lying on the creek, near its mouth and below the defendant's mill, and a right of water.

The deed executed by the defendant to H. D. Green recites that said Green "contemplates erecting stacks, furnaces and machinery for the purposes of reducing iron and other ores, for which he desired the use of the waters of the creek." These stacks, furnaces and machinery are now erected at a cost of $100,000, or more, and belong to the plaintiff, and the machinery is propelled by the waters of the creek, the plaintiff having a dam and reservoir capable of retaining water sufficient to drive that machinery twenty-four hours, though the defendant's gates be closed. This dam does not back water so far as to the foot of the defendant's wheel. This deed conveys to Green a parcel of land near the mouth of the creek, and below the defendant's dam and mill, and it conveys the right to the water, in the following terms: "Together with all the water privilege on Sucker Creek, the outlet of Sucker Lake, which can be obtained by building a dam above the land sold, as above stated, and below the " (defendant's) "mill at a point to be selected by the said Green, his heirs and assigns, he having the right, which is hereby granted, to construct and maintain a dam of any length and height, and to flow back the water to the foot of the present overshot wheel of the mill, and the right at ail times to use all the water which naturally flows below said mill in said stream, unobstructed by the parties of the first part, their heirs and assigns."

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It appears from the proofs and admissions, that the creek is, in the dry season, but a small stream, which, in its natural

condition is, for a short portion of the year, insufficient, to drive either the mill of the defendant, or the machinery of the plaintiff. And that by means of using the lake as a reservoir, and retaining water during the wet season, which would be of no use at that time in propelling the machinery of either party, the value and usefulness of the stream to both parties is greatly enhanced, but that the quantity thus saved was not sufficient to fully supply either party during the last dry season. That the natural flow of the stream is liable to become too small for either, by the heat and drouth of summer, and also by hard freezing in the winter.

The plaintiff complains that during the dry weather of the past summer, the defendant has ponded the water back so as to render it impossible for the plaintiff to operate his machinery, and that the defendant has let the water down from his gates at irregular intervals and in irregular and improper quantities, causing unnecessary waste of the water and interruption to the plaintiff's business of smelting ores.

The plaintiff also claims that by the construction of the deed, the defendant had no right to pond the water of Sucker Creek; but that the plaintiff has a right that it should flow at all times, as in a state of nature, to the plaintiff's reservoir without being stopped or ponded by the defendant. The plaintiff also claims that the defendant is threatening to build his dam higher than it was at the time of executing the deed to Green, and thus to further obstruct the flow of the water.

The evidence showed that the value of the water power to each of the parties was greatly enhanced by ponding Sucker Lake, and would be nearly worthless without it; that in dry weather the stream afforded but three to four inches of water under pressure of thirty feet; that at the date of the deed the defendant's mill required and used from thirty to sixty inches of water under thirty feet pressure; that the water required to run the defendant's mill ten hours, will run the plaintiff's machinery twenty-four hours; that the defendant's mill used at that time twenty-five cubic feet per second; that running the defendant's mill twelve hours, in times of low water, will draw down the lake three fourths of an inch; that the lake, when fully ponded, is of capacity, together with the natural flow of water into it, to run the defendant's mill twelve hours