Tuolumne Consolidated Mining Co. v. Maier

THE COURT.

Action for an injunction against the interference of defendant with plaintiff’s ditch. The defendant filed a cross-complaint, alleging that he was the owner of the Buena Vista Quartz Mine, situated below the head of plaintiff’s ditch on Duckwall Creek, and that plaintiff, by means of its ditch, had deprived defendant of the use of the water of said creek in and upon his said quartz-mining claim; also, that plaintiS had constructed its said ditch across defendant’s said mine. The court gave defendant judgment for restitution of that portion of his mining claim across which the ditch was eon

[584]

structed, and perpetually enjoining plaintiff from diverting the waters from said creek, and from in any manner preventing at least twenty inches of the natural waters thereof from flowing in their natural channel over and through said Buena Vista Quartz Mine.

The appeal before us is from an order denying plaintiff’s motion for a new trial.

It appears that the plaintiff, a mining corporation, owned the Providence Mine, and in connection therewith it owned the ditch running across defendant’s said Buena Vista mining claim; that the construction of this ditch, and the accompanying appropriation of water, was initiated on the twelfth day of June, 1897, by duly posting and recording a notice of appropriation of five hundred inches of the waters of said Duckwall Creek for use on said Providence Mine; that thereafter the construction of the ditch proceeded with due diligence to the time of its completion in October, 1898.

Prior to the initiation of the construction of this ditch, and on the tenth day of February, 1896, the defendant located the said Buena Vista Quartz Mine. It appears that the last-named mine, as located, overlapped to a large extent a previously located claim, known as the Cornet Mine. Duckwall Creek runs through that part of the Buena Vista which does not overlap any other claim. In 1898, the defendant constructed a dam in Duckwall Creek, and in the month of December of that year he commenced for the first time to divert and use-the waters of said creek for mining and milling purposes. The court found, in effect, that the defendant, with others, duly located the Buena Vista Mine on the tenth day of February, 1896, and that the defendant ever since that date had been the owner of an interest therein.