Bear River & Auburn Water & Mining Co. v. Boles

By the Court, Sawyer, J. The complaint alleges that the plaintiff is the owner of a ditch cut for the purpose of conveying the waters of Rock Creek to certain mining localities, for sale; that defendants, before the commencement of the suit, constructed two reservoirs in the bed of Rock Creek, above the head of plaintiff’s said ditch, by means of which the waters of Rock Creek are collected and detained from one day to a week at a time, and then let down in large quantities by opening the gates of said reservoirs ; that, by these means, the waters of said streams are not allowed to flow regularly, or with a uniform current, to said ditch ; that if said waters flow down said ditch with an uniform and uninterrupted current, said plaintiff has now, and has had for more than six months last past, a market for the same, by which it now can and could heretofore have realized about one hundred dollars per week for the same, by sale to quartz and and placer miners—and that he would have said market for a great length of time hereafter; that by the interruption of the regular flow of the waters, as before stated, the plaintiff’s customers are unable to use the same ; that the market and sale of the said waters depend entirely on the uniform and natural flow of said waters; that if the interruption continues, the plaintiff will lose from fifty to one hundred dollars per week; that defendants are insolvent, and will be [361]unable to respond in damages ; that said reservoirs are a nuisance ; and that the damages already accrued amount to five hundred dollars. Plaintiff prays judgment for the damages alleged, that the nuisance be abated, and the defendants be enjoined from obstructing in future the regular and uniform flow of said water.

The defendants, in their answer—after denying most of the material .allegations of the complaint, and claiming a right to the waters in themselves—allege, among other things, that. for a long term of years said ditch has ceased to convey any water, and has been mined away at its head, and at various other places, and since 1856 has been disused, and has neither carried nor been in a condition to carry any water; that said plaintiff, in and since 1856, sold water to various miners from another ditch owned by plaintiff, and that said miners, with the waters so purchased of plaintiff, with the knowledge, approbation, and consent of the plaintiff, washed away and destroyed the ditch described in the complaint to such an extent that it was wholly destroyed and unfit for conveying any water, and that since 1856 to the present time, the said ditch, by reason of said washing away and destruction, has been and still is wholly unfit to carry any water. They deny that said waters have flowed in said ditch since 1856, or that said reservoirs have in any manner affected the flow of said waters into said ditch. They aver that if plaintiff had a ditch to convey the waters collected in said reservoirs, they would be as useful to plaintiff as they otherwise would be ; that for the want of any ditch sufficient or fit to carry the said waters, the same flow down Rock Creek, after being used, by defendants, past the head of the ditch described in the complaint; that plaintiffs are not in a condition to use said waters until they rebuild the ditch which has been washed away as before stated.