Bryan v. Idaho Quartz Mining Co.

Hayne, C. —■ The plaintiff made a deed by which he granted, bargained, sold, and conveyed to the defendant the right to make and maintain a water ditch upon .and across his land, along a line then surveyed, to a certain point upon the land, and the right to construct and maintain at such point a reservoir not exceeding one and one half acres, the exact site thereof to be thereafter determined, and the right to “ lay down and maintain upon said premises an iron pipe, flume, ditch, or other conduit leading from said dam or reservoir to the Idaho [250]quartz mine; also a strip of land one rod in width along the whole length of said pipe or ditch, said pipe or ditch to be the center of said strip; also the land upon which said reservoir shall be constructed, not exceeding one and one half acres in extent; also the right of way, with sufficient land for a ditch to carry away the waste water from said dam or reservoir, said ditch to be constructed on such land as the grantee may hereafter determine; also the right of said grantee or its successors and its and their servants, officers, agents, and employees, to at all times enter upon and pass over and through said premises for the purpose of repairing and maintaining said ditches, pipes, and reservoirs.....The land herein conveyed being simply for right of way for said ditch, reservoir, and pipe, and for no other purpose. Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, and the reversion, reversions, remainder, remainders, rents, issues, and profits thereof, to have and to hold all and singular of said premises, together with the appurtenances unto the said party of the second part, and to its successors and assigns forever.”

The deed contained also the following clause:—

“ It being understood and a part of the consideration for this conveyance that the grantor shall have the right at all times to appropriate for his own use, and to conduct wherever he shall desire, so much of the waste water flowing over said dam or reservoir as he shall choose.”

The plaintiff's grievance is, that the defendant allowed the Maryland Mining Company to tap its pipe “by a branch pipe or tap in said iron pipe leading to the said Idaho quartz mine at a long distance from said reservoir and said Idaho quartz mine, and intermediate the same”; and that by reason of such diversion there was not enough waste water for his purposes. But we do [251]