vested rights shall be maintained and protected in the same." In con-
struing this section it was held that the law with respect to the use of
water may be shown by evidence of the local customs, or by the legisla-
tion of the State, or the decisions of the courts; and that the union of the
three conditions is not essential to the perfection of the right by priority,
but in case of conflict between a local custom and a statutory regulation,
the latter must control. Barnes v. Sabron,


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1. A ditch includes its dams.-A ditch carrying water for mining
operations includes any dam which is essential to maintain the flow of
water in the ditch; and to cut down any such dam is to cut the ditch,
within the statute making it penal to cut a ditch. Castleberry v. State
of Georgia,

2. Right of way in ditch the same as the ditch itself.-A deed which
conveys all the right of way in, to and for a mining ditch called the “ M.
B. W. Co." is a conveyanc. of the ditch; for there can be no distinction
between the right of way in the ditch and the ditch itself. Reed v. Spicer,

3. Act of Congress of July 26, 1866, construed- Local customs applied
to water rights and rights of way. The ninth section of the act of Con-
gress of July 26, 1866, granting the right of way to ditch and canal
owners over the public lands, and for other purposes enacted, “ that
whenever, by priority of possession, rights to the use of water for mining,
agricultural, manufacturing or other purposes, have vested and accrued,
and the same are recognized and acknowledged by the local customs,
laws and the decisions of courts, the possessors and owners of such vested
rights shall be maintained and protected in the same; and the right of
way for the construction of ditches and canals for the purposes aforesaid,
is hereby acknowledged and confirmed. Provided, howerer, that when-
ever, after the passage of this act, any person or persons shall, in the
construction of any ditch or canal, injure or damage the possession of any
settler on the public domain, the party committing such injury or dam-
age shall be iiable to the party injured for such injury or damage."
Held, that both the right to the use of water and the right of way men-
tioned in said section are subject in their enjoyment to the local customs,
laws and decisions; the object of the section being to give the sanction of
the United States to rights which had previously existed under such local
laws. The proviso conferred no additional rights upon the owners of
ditches subsequently constructed; it simply rendered them liable to
parties on the public domain, whose possessions might be injured by such
construction. Jennison v. Kirk,

4. Water rights a corporeal privilege.— The right to water is treated in
California as a right running with the land and as a corporeal privilege
bestowed upon the occupier or appropriator of the soil, and as such has
none of the characteristics of mere personalty. Hill v. Newman, 513

5. Relations to the fee.— The right to water may exist without owner-
ship of the soil over which it flows. Id.

DITCH. Continued.

6. Ditch across ranch claim.-A miner has no right to work within the
inclosure surrounding a dwelling house, corral and other improvements of
another. Burdge v. Underwood,

7. Ravine used as ditch bed.-A ditch owner may use a ravine as a con-
necting link between different portions of his ditch, and the fact that the
water, which at times flowed naturally into the ravine, had been previously
appropriated by others, would not deprive him of this right; the appropri-
ation of the water does not carry with it the exclusive use of the bed of the
stream. Hoffman v. Stone,

8. Enlargement of ditch.- The plaintiffs sought to recover on the
ground that defendants had enlarged their ditch since the commencement
of plaintiffs' ditch. Held, that defendants were not limited to the quan-
tity of water they had turned into their ditch in the first instance, unless
by the general plan, size and grade of the ditch, it was not capable of car-
rying more water than was then diverted. White v. Todd's Valley
Water Co.,

9. If by reason of obstructions or irregularity in grade, it was not
capable of conveving as much water as its general size would indicate, the
defendants would have a reasonable time to adjust the grade and remove
the obstructions, and then might fill the ditch to its capacity. But a fail-
ure for an unreasonable length of time to remove the obstructions or adjust
the grade and to divert more water through their ditch, would limit them
to the amount first diverted. id.

10. Diversion of water from choked ditch.-In such an action, where
both parties claimed water from the same stream: held, that defendant was
not liable for deficiency of water in plaintiff's ditch, unless defendant was
diverting more water than he was entitled to. at the precise time that
such deficiency existed. Held, further, that plaintiff could not recover
for alleged diversion of water from one of his ditches, if the jury believed
that, at the time of the alleged diversion such ditch was so filled up with
tailings that it was incapable of carrying off the water itself. Brown v.

11. Ditch, not a building or sup 13! 'ucture.--A ditch is not a build-
ing, and in 10 sense can be denominated a superstructure under the Me-
chanic's Lien Law. Ellison v. Jackson li ater Co.,

12. · Injury to ditch occasioned bg hydraulic process of mining.A
person who constructs a water ditch across a mining claim previously
located and worked by the hydraulic process, holds subject to the prior
rights of the owner of the mining claim and can not recover damages for
the washing away of a portion of his ditch so that the waters escape, if
such washing away is done in the usual and reasonable method of working
the mining claim. Jennison v. Kirk,

13. Injuries from over flow.-- The owner of a ditch is bound to keep it

in repair so that it will not overflow or break through its banks to the in-
jury of lands of other parties; and if, through his fault in failing to keep
it in repair, it washes away the soil, or deposits sand on the land along
which it passes, he is responsible therefor. Richardson v. Kier, 612

14. latural channel-Ravine.--Where a natural ravine is adopted us

DITCH. Continued.

part of the course of a ditch, the ditch owner is not responsible for an
overflow of the water naturally running in such ravine. He adopts such
natural water course only to the extent of the flow of his ditch, and is only
responsible for the overflow of the water resulting from his use of the ra-
vine for the purposes of a ditch. Id.

15. Evidence of value of ditch-Measure of damages.-In a suit by
the owners of a water ditch to enjoin the defendants from further working
their mining claims beneath the surface of the earth over which plaint-
iffs' ditch extended, for the reason that the ditch would be irreparably
injured by the settling of the earth caused by such mining, the plaintiff's
offered testimony as to the profits realized by them from certain mining
claims which they owned and worked with water from their ditch at a
point below defendants' claim. Held, that the testimony could only be
relevant as to the value of the ditch, and would not tend to establish
such value unless accompanied with further evidence showing that the
claim could not be worked without the aid of the ditch. In the absence
of such proof, the value of the ditch should have been proved in the or-
dinary way, by showing its capacity, the value of water for mining pur-
poses in the vicinity, and the probable duration of the demand. Clark
v. Willett,

16. Rights of ditch on public lands.-The Mining Act of Congress of
July 26, 1866, operated as a grant of the right of way and of the ditch,
where a right to the use of water such as was "recognized and acknowl-
edged by the local customs, laws and decisions of courts," had been ac-
quired at the date of its passage; and the subsequent grantees of the
United States take subject to the easement. Broder v. Natoma Mining

17. State statute construed.— The Nevada act of March 5, 1869,
applies only to cases where persons desire to construct ditches through
the lands of others, and find it necessary to condemn the land beeause
the consent of the owner can not be obtained. Barnes v. Sabron, 673

18. Reasonable use-Ditch not used to its full capacity.—What
amounts to a reasonable use depends upon the circumstances of each case,
but a party who constructs ditches carrying a greater quantity should not
be confined to the amount of water used by him the first and second years
after his appropriation, nor his rights regulated by the number of acres he
then cultivated; the object in view at the time of his diversion of the water
is to be considered in connection with the actual extent of his appropria-
tion by such ditches. Id.

19. Findings as to capacity of dit.h.—Where a finding as to the
capacity of a ditch is based upon its being of a certain size and grade,
and though its size is proved there is no sufficient proof of its grade. Held,
that the finding should be set aside and a new trial granted. Ophir
Mining Co. v. Carpenter,

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20. Idein-New issues in Supreme Court.-In a controversy as to the
amount of water appropriated, both parties conceded that it should be
measured by the capacity of a certain flume at a certain point.
that the investigation in the Supreme Court should be confined to the same
section of the flume in reviewing the finding as to its capacity. Id.


DITCH. Continued.




1. Servitude of lower mine.-The owner of a mine at the higher level
has a right to work his whole mine, in the manner usual and proper for
getting out the minerals, and is not liable for any water which flows by
gravitation into the adjoining mine from works so conducted. But he
has no right, by pumping or otherwise, to be an active agen: in send-
ing water from his mine into the adjoining mine. Baird v. Williamson,





1. Tenant at will has no ea sement to take soil.-An occupant who is
only a tenant at will can never have a right to take away the soil of the
lord. Dean and Chapter of Ely v. Warren,

2. Res gestre; visible servitudes.- To give effect to all parts of the in-
strument, the surrounding circumstances, within the knowledge of the
parties, must be considerel; 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. Oregon Iron Co. v. Trul-



1. What necessary to maintain for mining claims-Burden of proof.
– To maintain an action of ejectment for a mining claim, the plaintiff
must establish not only that he is in possession, but that a lode had been
discovered on the claim prior to the commencement of action and that
such lode so discovered extends from the discovery shaft to the ground for
which he sues. These are facts to be determined by the jury, from a pre-
ponderance of the evidence. As to them, the burden is on the plaintiff.
Zollars v. Evans,

2. Outstanding title no defense to action for possession.--The rule that
plaintiff must recover upon the strength of his own title does not apply to
actions for the recovery of the possession of a mining claim, and proof of
outstanding title is no defense to such action, unless the defendant connects
himself with it. Bradley v. Lee,


1. Damages allowed in equity, only as an incident.— Where proper
ground for equitable relief is laid and sustained, and jurisdiction has thus
attached, courts of equity will proceed to award compensation or damages
when they are incidental t) such relief, but not otherwise. Koch's and
Balliet's Appeal,

See LIEN; WATER, 20.


1. Estoppel against stockholders by acquiescence. To work an equi-
table estoppel upon the stockholders, it was not necessary that they should
expressly assent to the issuance of the preferred stock; it was sufficient
that they neglected actively to condemn the unauthorized act and to seek
judicial relief until third parties would be injured by the granting of it.
Kent v. Quicksilver Co.,

2. There is no estoppel between a corporation and the subscribers to
its stock; and its action to recover subscriptions may be defeated upon in-
quiry into the conditions upon which the subscriptions were made. Coy-
ote Mining Co. v. Ruble,

3. No estoppel by silence, to affect title. -An instruction, that if de-
fendants owned the ground in dispute, but stood by and permitted plaint-
iffs to expend inoney and labor in developing it and by their silence in-
duced plaintiffs to believe their title good, then such matters should be
taken into consideration in determining the conflicting claims, is errone-
ous, for such matters could have no possible effect upon the question of
title. Stone v. Bumpus,

4. Abandonment.--A applied to B to know if there was any mining
ground in the vicinity which was vacant, and upon which he would be
likely to find ore. B pointed out certain ground, stating that it was va-
cant and that A could locate and appropriate it to his own use. A there-
upon located and worked the ground until it became valuable, when C, to
whom B had afterward granted, claimed the premises under a location
which B had previously made but concealed from A. Held, that every
element essential to constitute an equitable estoppel sufficient to operate
as a transfer of the title from C, if he possessed it, is here present; but
that the case is more in the nature of an abandonment of the property by
B. Golden Terra M. Co. v. Mahler,

5. Water rights.-If those who have the prior right to water stand by
and allow others to expend money and labor in appropriating the waters
of a stream under the mistaken idea that they have the better right to
the water, the first appropriators will be estopped from setting up their
prior right. Parke v. Kilham,


1. Obligation accepted from corporation-Presumption.-One accept-
ing the obligation of a company as the engagement of a corporation
clothed with statutory liability only, and treating with them as such, is
presumed to have known the extent of that liability, and to have acted
with reference thereto. Humphreys v. Mooney,

2. Assertion of right no threat. The declaration of the owner of a
cañon claim before building a dam, that he would put in a dam that
would flood plaintiff's claim (a junior claim lying above), is entirely con-
sistent with the necessity or utility of the structure in the working of the
cañon. Stone v. Bumpus,

3. Statements of one do not bind other co-tenants.-The representation
of one tenant in common as to the extent of the subject of the grant of
himself and his co-tenants, can not amount to an estoppel against his co-

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