Henderson v. Western Precipitating Co.

MAXEY, J.,

pro tem.

The plaintiff is the owner and in possession of a certain mining claim situate in Sierra County, and particularly described in plaintiff’s complaint, being commonly known and located as the “Natalee Creek Mining Claim”. Plaintiff’s claim was located on May 7, 1926, and notice of location was duly recorded in Sierra County. The notice of claim contains the following wording: “I, the undersigned, locate said creek for the purpose of working the tailings. Said claim contains Creek. ’ ’

Defendant is the owner of an hydraulic mining property that adjoins the property of plaintiff, and is situate upstream from plaintiff’s claim. Defendant’s property is commonly referred to as “Loftus No. 1” and “Loftus No. 2”. On May 1, 1926, the defendant or its predecessor in interest located, and later constructed a tunnel on its property known as the “Dawson Tunnel”, and sometimes referred to as “Howland Flat Tunnel”.

Defendant constructed a reservoir on its land to be used in the mining operations on its property, and at certain times or seasons of the year washed the gravel on its property through the Dawson tunnel, through its sluices, and emptied the gravel and debris into Slate Creek, which carried it down and over the claim and property of plaintiff. Plaintiff had performed the work upon his claim which was required of him each year, and had filed his proof of labor therefor. In 1932 plaintiff was in actual possession and occupancy of said claim and had installed sluice boxes, dug trenches, and otherwise improved said claim and had recovered some minerals from the said property by running the tailings through the sluices so constructed by him.

Defendant had both constructive notice and actual knowledge of plaintiff’s operations on his claim.

[20]

On October 21, 1932, defendant opened the reservoir on its property and caused a large amount of water to be run through Dawson tunnel and into Slate Creek, and thence down-stream on and over the property of plaintiff, causing the excavation made by plaintiff on his property to be entirely filled up with rocks, gravel and debris, and further washing out and destroying plaintiff’s sluice boxes and either washing away or covering up plaintiff’s tools and implements then on the claim of plaintiff and being used by him in the operation of his claim.