Jones v. Jackson

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. The Monte Cristo, Swanton, and Exchange Companies located separate claims for tunnel-mining, at or near the head of a very steep ravine, in 1853. The different tunnels of these different companies penetrated under the mountain, to the distance of several hundred feet, where they found rich deposits of gold, in a hard formation, like cement, which did not dissolve readily in water, until after exposure to the atmosphere for a considerable space of time. From the character of this formation, it resulted that the first washings only extracted a portion of the gold, leaving the other portion to flow off with the tailings, which were deposited on a flat, several hundred feet below the mouths of the tunnels. The owners of the Monte Cristo tunnel posted a notice, in 1854, stating that they claimed the tailings running from their sluices, and that they intended to wash the tailings again. The tailings from the different tunnels were partially mingled, though some effort was made to keep them distinct. The mass of tailings could readily be distinguished from the soil [244]of the flat on -which they were deposited, by the difference in color and appearance; and the flat was the first point where, from the natural features of that locality, the tailings could find a resting-place. In the summer of 1855, the parties under whom the defendants claim, located some twenty claims, called the Express Company’s claims, on this flat, including a portion of the ground upon which the tailings were deposited. The Monte Cristo Company sold their tailings to plaintiffs, who went upon the flat, and erected their sluices, which were abated by the defendants, under a claim of right. This suit was brought to recover damages for the injury. The defendants had judgment in the Court below, and the plaintiffs appealed.

The Court, at the request of the plaintiffs, instructed the jury that “ if they believed that the Monte Cristo Company were the first to appropriate the ground covered by the tailings, and, while continuing to hold and claim the same, said company conveyed the tailings caught or stopped on said ground to plaintiffs,” and that afterwards the defendants did the injury complained of, then the plaintiffs were entitled to a verdict.

After giving the first instruction, the Court refused to give the second, as follows : “To entitle defendants to work the tailings from the Monte Cristo Company, after being sold to plaintiffs, the defendants must show that they had purchased said tailings, or that said tailings had been permitted to run upon ground after such ground had been lawfully appropriated by defendants.”