DISTRICT RULES. Continued.
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,
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, 224
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 conveyance of the ditch; for there can be no distinction between the right of way in the ditch and the ditch itself. Reed v. Spicer, 330
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, however, 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 liable 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, 504
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.
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, 518
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, 520
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. Smith, 539 11. Ditch, not a building or sup 13 'ucture.--A ditch is not a build- ing, and in no sense can be denominated a superstructure under the Me- chanic's Lien Law. Ellison v. Jackson is ater Co., 559
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, 504
13. Injuries from overflow.--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. Natural channel-Ravine.—Where a natural ravine is adopted as
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 plaintiffs 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, 628
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 Co., 670
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. that the finding should be set aside and a new trial granted. Mining Co. v. Carpenter,
20. Idem-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. Held, 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.
See, APPROPRIATION; EVIDENCE, 7; EXPERTS; FLUME; MEASURE OF DAMAGES. 2, 6; NUISANCE; TENANTS IN COMMON; WEIGHTS AND MEASURES.
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 agent in send- ing water from his mine into the adjoining mine. Baird v. Williamson, 368
See EASEMENT; VERDICT, 5.
1. Tenant at will has no easement 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, 233
2. Res gesto; visible servitudes.-To give effect to all parts of the in- strument, 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. Oregon Iron Co. v. Trul lenger,
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, 407
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,
See EVIDENCE, 6; CONVEYANCE, 5; LEASE, 6. EMBEZZLEMENT.-See INDICTMENT, 4.
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 tɔ such relief, but not otherwise. Balliet's Appeal,
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 money 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, 271
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,
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, 523
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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