Stiles v. Laird

Bryan, J., delivered the opinion of the Court. Heydenfeldt, J., concurred.

This cause comes up upon the following state of facts :—The Respondent purchased from miners upon “ Lawson’s Ravine,” in the County of Nevada, certain mining claims, situated upon the ravine, which had been held and worked for several years A large surplus of water from the debouching- of foreign ditches, passed through the ravine, which was used by the miners upon the ravine in the washing of the gold-bearing earth and the removal of tailings from their claims. Subsequently to the location of mining claims upon the ravine a portion of the plaintiffs below, erected a dam for the purpose of turning the water into a mill-race, and conducting the water to a mill occupied by them. The respondent and others, mining upon the ravine complained of the erection and retention of the dam as injurious to the free use of their mining property above the dam, by flooding their ground with water, and preventing- an outlet to the tailings from their claims. Notice was given, as appears by the evidence sent up, to the plaintiffs below, to remove or open their dam on account of the injury it was working to those above.

The plaintiffs below not removing their dam, respondent, Laird, with others, proceeded, as they attempted to establish by proof, in a peacable manner to remove the dam themselves, and abate the same as a nuisance.

This action was brought against them for damages in the Court below upon the account of the removal above alluded to, and the jury found a general verdict for the defendants. The plaintiffs appeal and assign as error the charge of the Court to the jury and errors of law occurring at the trial.

Appellants’ counsel relies for error—First, upon the charge of the Court below, to the effect, that if the jury believed from the evidence that plaintiffs had so extracted the waters in “Lawson’s Ravine” by [122]means of their dam, as to create a nuisance to those working in the neighborhood who were first in their location of claims upon the ravine, then the jury should find for the defendants.

I deem the instructions given by the Court to have been proper. The statute of this State defining what are nuisances and prescribing a remedy by action, does not take away any common law remedy in the abatement of nuisances which the statute does not embrace.

The rules of the common law were so far adopted in this State as to supply any defect which might exist in the statute laws by furnishing additional remedies for the correction of wrongs. It matters but little whether the nuisance complained of in this cause is called private or public at the common law; if cither it could be abated by the party aggrieved, if performed without a breach of the peace. Blackstone in book 3, page 5, of his Commentaries, defines a nuisance and its remedy thus : ‘‘Whatsoever unlawfully annoys or doth damage to another is a nuisance, and such nuisance may be abated, that is taken away or removed, by the party aggrieved thereby, so as to commit no riot in the doing.” So it has been held in the English Courts, “that if a person upon his own soil erect a tiling that is a nuisance to another, as by the stopping a rivulet, and thus diminish the water used by his cattle, the party injured may enter upon the soil of the other and abate the nuisance.” 2 Smith's Reports, page 9. Comyn's Digest Title Pleader. So the general doctrine has been held in Hart v. The Mayor of Albany. 9 Wendell. The same doctrine is also held in Angell on Water Courses, page 426, that a private nuisance may be abated by the party aggrieved if it is done peaceably and without a breach of the peace.