Harvey v. Chilton

Does the raising of his dam by defendant, operate as a nuisance to the property and rights of the plaintiffs ?

For the purposes of this action, the plaintiffs must be regarded as the actual owners in fee of the bed and banks of the stream, and the owners of a mill site upon which they had already taken measures, by digging a ditch, to erect a mill. (Merced Mining Co. v. Fremont, 7 Cal. 130.) The defendant then could not do any act which would operate as a nuisance to the plaintiff, in obedience to the rule of-the common law, “ sio wire two ut alienum non laidas.”

In this case irreparable injury is the direct result of defendant’s act, for it entirely prevents the use and employment by plaintiffs of their property. It is such a material injury to property as a Court of Equity will prevent. (Winstanley v. Lee, 2 Swanst. R. 335 ; Attorney General v. Nichol, 18 Yes. 343; Cherrington v. Abney, 2 Yern. 646 ; Nutbrown v. Thornton, 10 Yes. 163 ; Mohawk & Hudson Railroad Co. v. Artcher, 6 Paige, 83.)

The bare flooding of plaintiffs’ claims is sufficient to warrant the relief. (Repka v. Sergeant, 7 W. & S. 1.; Pastorious v. Fisher, 1 R. 27; Ramsey et. al. v. Chandler et al., 3 Cal. 90; Remis v. Clark, 11 Picks. 452.

“ Where parties have located a mining claim upon the banks of a stream, and are using the bed of the stream for the purpose of working [117]their claim, any subsequent erection or dam which will turn the water and hinder their work, is an encroachment upon the rights of said parties.” (Sims v. Smith, 7 Cal. R. 148.)

This cause having been tried upon demurrer, the Court improperly taxed jury fee and witnesses’ fees against plaintiffs.

The costs, to say the least, were in the discretion of the Court, and he ought not to have taxed them all against plaintiffs. (Practice Act, sections 495, 497, 498.)

Thos. H. Williams for Respondent.

The first ground appellants (plaintiffs below) maintain, that the complaint does state facts sufficient to constitute a cause of action, and that the facts so stated warrant the relief sought.

The Court will observe by an examination of the complaint, that’ immediate or present injury is not complained of, but when plaintiffs get the remaining third of their ditch completed, and get ready to build a quartz mill, and make the other necessary arrangements, by turning the river, &c., to work the “ river bed claim,” and also to work the “ bank claim,” then they expect to be injured, and have no doubt but that their said works will be impeded.