Stone v. Bumpus
Before: Rhodes, Sakdeeson, Sprague
Synopsis
Appeal from the Fourteenth District Court, County of Placer.
This is an action to recover damages for the erection of a dam, and to abate the same as a nuisance, and to enjoin the continuance thereof.
Defendants admit the erection of the dam, and claim the right to continue the same; and allege that the grounds claimed by plaintiffs belonged to and is a part of the mining claim of defendant, P. Bumpus.
On the trial, the plaintiff asked the Court for the following instruction to the jury: If defendants or either of their grantors ever owned the ground called the Stone Boys’ Claim, at the time plaintiffs took up and worked the same, then if they stood by and permitted plaintiffs to expend money and labor in working and developing the same, and kept silent about their claim, and thereby misled plaintiffs and induced them to take the ground, believing their title good, then defendants are precluded from setting up their title to the ground against that of plaintiffs; and this is equally the case whether this was done by defendants themselves or by their grantors before they parted with title to defendants.” Which the Court refused, and then instructed the jury, that the matters recited in the instruction, if true, should be taken into consideration in determining the conflicted claims of the parties to the premises in dispute.
The remainder of the case is stated in the opinion.
Opinion — Sakdeeson
Sakdeeson, J., delivered tbe opinion of the Court, Rhodes, J., Sawyer, C., J., and Croceett, J., concurring:
This is an action founded upon the 249th Section of the Practice Act, which defines a nuisance, and provides remedies therefor. The plaintiffs allege that they are the owners of a certain mining claim, situated on the north side of Indian Cañón in Placer County, which mining claim cannot be worked without the use of the Canon, as an outlet for water and tailings.
That the grade of the Canon is light, and that the defendants have erected and are maintaining a dam across the Cañón, at a point below their claim, which dam obstructs the flow of water and tailings down the Cañón, to such an extent as to render the working of the plaintiffs’ claim impracticable.
The defendants in effect, admit the erection of the dam, and its effects upon the work of the plaintiff's, to be as alleged; but deny that the plaintiffs own, or aré entitled to work the ground in question, and to the contrary allege that the ground is in fact, a part of their claim, which is older than the pretended claim of the plaintiffs is alleged to be, and is, what is called a Cañón claim, which according to mining custom embraces all the ground lying in the bed and banks of the Cañón, extending to the bedrock on either side as high as the water line; and that the dam was erected for the purpose of enabling them to work their claim, which as they alleged cannot be worked without it.
'In view of these issues to enable the plaintiffs to recover, it should have appeared at the trial: 1st. That the plaintiffs owned the ground claimed by them. 2d. That the dam prevented their working it to advantage. 3d. Alternatively that the defendants had no title to the bed of the Canon; or if they had, that their right was acquired [431]subsequent to that of tbe plaintiffs, or if prior, that the dam was not needed, to enable the defendants to- work to advantage.
As to the first proposition, the testimony preponderates in favor of the defendants, but still it is conflicting, and so far as the action of this Court is concerned, the plaintiffs’ title must be considered as made out. But the first proposition was the only one which was established by the testimony.
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