Jacob v. Day
Before: Henshaw
Synopsis
Water Rights—Hydraulic Mining—Easement for Tailrace—Right of Wat under Act of Congress.—The use of water for the purpose of carrying off the tailings, and the construction of a ditch to aid therein, are as essential to the successful conduct of hydraulic milling, as is the first use to which the water is put in washing down the natural hank; and the title to an adjoining mine passes under patent from the United States subject to the easement of the right of way for a ditch nsed, in accordance with local mining customs, as a tailrace from a hydraulic mine across the patented ground prior to the patent under the provisions of sections 2339 and 2340 of the Revised Statutes of the United Slates.
Id.—Mining Customs—Evidence—Pleading.—In support of title, evidence of mining rules and customs may be given under the general issue, without specially pleading such rules and customs.
Id. —Easement for Drainage—Ditches for Mining Purposes—Construction of Act of Congress.—The easement for the tailrace of a hydraulic mine is not an easement for drainage within the meaning of section 2338 of the Revised Statutes of the United States, excluding easements for drainage from the purview of the act of Congress; but is a right to the use of water for mining purposes and for the construction of ditches for such purposes within the meaning of sections 2339 and 2340 of said statutes.
Id.—Contest of Mining Patent—Estoppel of Former Judgment-Pleading.—Where the holder of a mining patent suing as plaintiff relies upon an estoppel of a former judgment against the predecessors of the defendants in support of his title, rendered in a contest of the application for the patent, it is proper that he should plead such estoppel, and it is error to strike it from the complaint, when properly pleaded.
Id.—Insufficient Proof of Estoppel—Judgment of Nonsuit—Claim of Easement.—Where, in the contest of plaintiff’s application for a patent, the predecessor of defendants instituted a suit opposing the application in so far as it affected the strip of land which embraced the ditch claimed by him, and transferred by him to the defendants, and was nonsuited upon a motion stating as grounds therefor that the plaintiff in the action merely had an easement' over the laud of defendant and that his rights were fully protected under section 2339 and 2340 of the Revised Statutes of the United States, such judgment of nonsuit can be no estoppel against a claim by his successors in interest that they are the owners of such an easement.
Id.—Use of Easement—Maxims — Slight Injury from Tailrace — Injunction.—An casement must be used in such a manner as to impose as slight a burden and damage as possible, under the application of the maxim sic utere tuo ut alientan non ¡tedas; but where a tailrace of a hydraulic mine is an easement upon patented mining ground, the fact that the running of the tailings through the tailrace in the ordinary course of mining caused a small portion of the ground alongside of the ditch to cave down and wash away, and caused the tailrace to cut farther into the bedrock, but without material or appreciable injury to plaintiff, the rule de minimis applies, and the owner of the patented ground is not entitled to an injunction.
Henshaw, J. Appeals from the judgment and from the order denying a new trial.
The action was brought to abate an alleged nuisance maintained by defendants upon the lands of plaintiffs, for an injunction, and for damages.
The nuisance consisted of a tailrace, sluiceway, cut or ditch, by which the water, bearing detritus from defendants’ hydraulic mine, was carried across the land of plaintiffs and discharged into the Trinity river.
This ditch had been used in connection with the working of the Bartlett and Evans mine for many years prior to and after the acquisition of a patent. That mine is the property of defendants, and a patent therefor had been obtained in 1869. The land of plaintiffs crossed by this ditch is now known as the Barthol Jacob Gold Placer mine. But at the time of the construction of the ditch, and for many years of its use thereafter, plaintiffs’ land was open, unappropriated, public mineral land of the United States. Entry and payment for the Barthol Jacob mine were made in October, 1887. This action was commenced within five years from the date of the issuance of the patent.
Defendants rely upon title by prescription, which was pleaded, and, in this connection, proved continuous ad[575]verse use under claim of right for more than five years continuously after October, 1887. They also rely upon title under section 2339 of the Revised Statutes of the United States, asserting that their right is one embraced within the provisions of that section, and sanctioned by the mining custom of the district. This custom was not pleaded, but the claim is made that evidence thereof is admissible under the general issue.
The principal questions thus presented are: 1. Did defendants acquire a right of way for the ditch by virtue of the provisions of section 2339 of the Revised Statutes of the United States? 2. Did they acquire a right of way by prescription?
There are certain essentials to the practical conduct of all hydraulic mining operations. Water must be obtained in quantities, and carried to the mining ground under pressure sufficient to disintegrate and wash down the natural bank. For these purposes, in the mining districts of this state, reservoirs, ditches, flumes, and pipe-lines are indispensable. The soil and gravel thus eroded must be carried by gravity and the force of the refluent water through cuts, sluiceways, and flumes, where the gold, by reason of its greater specific gravity, is deposited, caught, and gathered. Lastly, by aid of the same beneficent agent, the resulting waste matter, soil, and gravel must be carried away through convenient channels so as not to impede further operations. The ■water itself does not lose its utility to the miner nor become an impediment to his work during any of these processes. Through them all it is not only of high utility, but an absolute necessity. It is, therefore, inaccurate to call it waste or superfluous water, or to describe the work which it does in carrying tailings as the drainage of a mine. To drain land is to rid it of its superfluous moisture. In the case of a quartz or drift mine, drainage is an appropriate term when applied to the means by which water which is in them, always superfluous and a hindrance to the work, is met and disposed of. But hydraulic mining is defined to be “mining by
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