Richard v. Hupp

SEARLS, C. This is an action to abate a nuisance averred to have been caused by the erection of a dam by defendant across a watercourse in Butte county, known as “Little Butte creek,” whereby the water of said creek is caused to flow back upon and submerge the quartz mining claim of plaintiff. The cause was tried by the court, without the intervention of a jury, and written findings filed, upon which judgment was entered in favor of defendant for costs. Plaintiff appeals from the judgment and from an order denying his motion for a new trial. Plaintiff, who is appellant here, is, and he and his grantors have been, the owners of and in possession of a quartz mining claim situate and being in section 36, township 24 north, range 3 east, Mount Diablo meridian. Plaintiff and his co-owners, in 1870 and 1871, constructed a flume running from said mine about five hundred and sixty-four feet down the bed of Little Butte creek. Said flume was built in the bottom of a rock cut from two to five feet deep, and the top of the rock cut was from three to six feet below the natural bed of the creek. All of said flume, except one hundred and sixty feet of the upper end thereof, is upon land owned by the defendant. The flume was used by plaintiff and his co-owners to convey water from their mine, and to some extent for placer mining. The mill of plaintiff has not been used since 1873, and the mill has gone to decay. In 1881, third parties, who had a bond from plaintiff, pumped out the mine, and took out some quartz, but, so far as appears, did not work it. The flume went to decay, and, as the court found, nothing is left of it but the ruins in the bed of the rock cut. Defendant is the owner in fee simple of the northwest quarter of section 1 in township 32 north, of range 3 east, Mount Diablo meridian, under a pre-emption settlement and entry made in 1868, and a United States patent issued in 1871 to one Nelson, the grantor of said defendant. There is also evidence and a finding as to the ownership by the defendant of a mining claim on the creek between his patented land and the-lower or south line of plaintiff’s quartz claim, the ownership of which, however, is unimportant to the decision of the ease. In 1888 defendant constructed a dam across the creek upon his patented land, about six hundred feet below plaintiff’s mining claim, and a short distance below certain falls in the creek, for the [826]purpose of diverting the water of the stream for mining and irrigation. The dam so constructed by the defendant is about three feet higher than the crest of the falls, and sets the water back in the stream, but does not overflow or set the water back above defendant’s own land, or upon or over the mining claim of plaintiff, or injure it in any manner. That, the water so set back overflows a portion of the rock cut in which plaintiff’s flume was constructed, but such portion is upon defendant’s patented land; and that plaintiff is not the owner thereof, and has no easement in defendant’s land, or right to use the same for the purpose of maintaining a flume thereon. The findings are quite full upon all the issues, and are only stated to the extent deemed necessary to an understanding and elucidation of the points made by appellant. At the trial, objection was made by appellant to testimony tending to show the condition of his mine; that it had not been worked since 1873; that the mill building had fallen down; the flume which carried water to the wheel had disappeared; that the wheel and machinery had gone to decay, etc.-—which objection was overruled, an exception taken, and the ruling is assigned as error.