McLaughlin v. Del Re

Foote, C. The complaint in this action alleged that the plaintiff, being the owner of a certain placer mining claim, appropriated for the purpose of working the same the waters of a certain creek or gulch, by means of a ditch and flumes, and that while in the use and possession of said ditch, the defendants began mining by the hydraulic process on the hillside sloping into the gulch, whereby large quantities of earth and debris were washed down and deposited in the gulch, and ran into and filled up the plaintiff’s ditch, and prayed that the defendants be perpetually enjoined from continuing the acts complained of, and for damages which such acts had already occasioned to the plaintiff’s property.

Upon the other hand, the defendants, by their answer, claimed that for more than twenty years they had possessed and worked their mining claim, and had used the creek or gulch as a tail-race and receptacle for tailings and debris, caused by the working of their mine by said hydraulic process; and that the plaintiff had, at his own risk and peril, entered upon their said claim, while defendants were working it, and constructed his ditch and flumes.

Upon the former hearing of the case before this court, it appeared that it was an action in equity, and that the court below had granted the injunction as prayed for, and rendered judgment for damages upon the verdict of a jury, without having made or filed any findings of fact; whereupon the judgment and an order denying to the defendants a new trial were reversed and the cause remanded, with directions to the trial court to find the [232]facts upon the testimony already taken,, and such further testimony as might be thereafter taken, and to enter an appropriate judgment thereon. (64 Cal. 473.)

In compliance with such direction, the court below proceeded to take further testimony, and upon it and that which had been formerly taken, and upon the verdict of the jury awarding $470 for damages inflicted on the plaintiff’s property by the defendants, filed findings of fact and conclusions of law based thereon, and granted a perpetual injunction restraining the defendants from continuing the acts complained of against them, besides rendering judgment for the plaintiff for the sum of money awarded by the verdict of the jury. From the judgment and an order denying a new trial the defendants have appealed.

The findings are as follows:—

“ 1. That in the year 1862 Patrick Kelly, James Grider, and Michael Carroll were the owners of and in the. possession of that certain gravel mining claim described in defendents’ answer, and which claim is in the hill and is situated and commences a short distance above the bed of the gulch known as Old Gulch, in Calaveras County, and extending into the hill about eight hundred feet, more or less.