Abram v. Stuart

Belcher, C. — On the 14th of July, 1890, the defendant Kaslowsky, to secure payment of the sum of $504.21, executed to the plaintiff a mortgage upon a certain mining claim and water-ditch, which he had owned for many years, known as the Stony Bar claim and Stony Bar ditch.

On the 23d of May, 1890, Kaslowsky and one Graydon located another mining claim, known as the Red Hill claim, which seems to have adjoined the Stony Bar claim, and across which the Stony Bar ditch extended.

In June, 1890, Graydon, and the defendants Stuart and Kaslowsky, began to work the Red Hill claim by the hydraulic process, dumping the debris and tailings upon the Stony Bar claim, and during that month they washed away seventy-nine feet of the Stony Bar ditch.

Work was then suspended until December, 1890, when the defendants, some of whom had purchased Graydon’s interest, began again to mine and wash away the Red Hill claim, dumping the tailings as before, and they continued such work up to the time this action was commenced, on January 9,1891. After resuming work on the mine, as aforesaid, defendants washed away eighty-seven feet more of the Stony Bar ditch.

In his complaint, the plaintiff alleged that Kaslowsky executed to him the mortgage as before stated, and that on or about December 1, 1890, the defendants “entered upon said property, and ever since said date have been and now are engaged in mining on a portion of the same by forcing water through pipes and a nozzle, under pressure, and thereby disintegrating, washing away, and removing the earth, rock, and gravel, and causing the same to pass through cuts and sluices where gold is retained; .... that by reason of said working, the value of said mining property is being constantly diminished, and the security of plaintiff thereby impaired”; also, that by reason of said working, defendants have washed away a portion of said Stony Bar ditch, and destroyed the situs of the same, and they threaten to continue their working and totally destroy said ditch, and that by [237]the destruction of the ditch the security of plaintiff will be rendered valueless; that the work carried on as aforesaid by defendants has caused and is causing the earth, rock, and gravel to be deposited on a portion of the claim; and that the said mining claim is of the value of $250, and the said ditch is of the value of $250.

Wherefore, plaintiff prays that a temporary injunction be issued restraining the defendants from committing the acts complained of, and that on the final hearing the injunction be made perpetual.