McCarthy v. Gaston Ridge Mill & Mining Co.

HARRISON, C.

The plaintiff is the owner of a tract of land in the county of Nevada which he has occupied as his Residence and cultivated for many years, irrigating it by means of water brought thither from the south fork of Poorman Creek, through a ditch of which he is also the owner. The defendant, since January, 1900, has been engaged in mining and milling in that county, and has constructed a ditch through which sand and refuse matter have been carried from its works and discharged into said south fork of Poorman Creek above the head of the plaintiff’s ditch, and thence into and through said ditch upon the lands of the plaintiff. In his complaint herein the plaintiff alleges that

[544]

by reason of these acts of the defendant the waters flowing through his ditch are rendered offensive to the smell, unwholesome, and so polluted as to be unfit for watering his stock, and that the sand caused to be deposited upon his land is injurious to it, and if continued will render it unfit for cultivation. He therefore asked that - the defendant be enjoined from further committing said acts, and that he recover judgment for the damages already sustained therefrom.

The action was commenced February 13, 1901, and on June 15th the defendant answered the complaint. The cause came on for trial October 17, and special issues as to the amount of damage sustained by, the plaintiff were submitted to the jury. The jury found that the plaintiff had not sustained any damage, but the court refused to accept their verdict. After this verdict had been given the defendant filed a supplemental answer November 16, 1901, alleging that since the commencement of the action defendant had constructed a ditch from its mine and mill to a point in said south fork of Poorman Creek below the head of the plaintiff’s ditch, into which it had, since its completion, discharged all the water used by it in the operation of its mine and mill that could in any way pollute or affect the waters flowing upon the plaintiff’s land. Thereafter, January 8, 1902, the court rendered its decision, and found:—

“That since the 27th day of January, 1900, and until about the 18th day of October, 1901, the defendant had caused sand and tailings from its quartz-mill to flow down into the south fork of Poorman Creek at a point on said stream above the head of plaintiff’s ditch, and thence into and through said ditch upon the cultivated lands of plaintiff, and also filling the ditches of plaintiff with sand and débris, and contaminating the waters of plaintiff and rendering said waters unfit for watering stock, to plaintiff’s damage in the sum of fifty dollars.