12 Colo. 12 | Colo. | 1888
It is urged by plaintiffs in error that the evidence is insufficient to sustain the findings of fact upon which the decree is based, and particularly as to the amount of water that had been appropriated by the Pollard ditch, the American ditch and the Stevens flume prior to the 10th day of June, 1810, and as to the custom of miners to dump their tailings upon their own ground and let them take care of themselves.
We have carefully examined the evidence and think it well sustains the finding of the court as to the amount of water appropriated by said ditches and flume by a beneficial use thereof. The existence of the custom claimed by plaintiffs in error is not established by the evidence. By section 2393 of the General Statutes then in force it is provided that no person shall be allowed to flood the property of another person with water, or to wash down the tailings of his sluice upon the claim or property of other persons, but that it shall be the duty of every miner to take care of his own tailings upon his own property, or become responsible for all damages that may arise therefrom. Any evidence which fails to show that defendant in error consented to the commission of the acts complained of is insufficient to confer any right to commit them.
It is claimed by plaintiffs in error that the mining claims of defendant in error have little or no value for mining purposes, and that, by reason of such fact, the case made by it for relief is barren of equity. .
While it does not appear from the evidence how valuable the claims of defendant in error are, it does appear that they are considered to be valuable placer claims, bearing gold in paying quantities, and that the work that was interfered with by the acts complained of was being prosecuted by defendant in error for the purpose of their development; and it also clearly appears from the evidence that, until the character of the claims has been demonstrated by development, their value cannot be estimated.
It is urged by plaintiffs in error that this action ought not to be maintained because of the delay of the complainants in applying for relief; and.the argument of counsel for plaintiffs in error in support of this claim is based upon the fact that the building of the flume, by means of which the wrongful diversion of water, and its wrongful use as complained of, were made, was commenced in 1871 — more than five years before this suit was brought. It does not appear from the evidence that plaintiffs in error diverted or used any of the waters of South Swan or Middle Swan rivers to the detriment of the complainants until September, 1876, and this action was commenced in December, 1876. Complainants were not required to institute proceedings to restrain the building of the flume, and are not estopped from maintaining this action by reason of their neglect to institute such proceedings, and there is no evidence in the case upon which an equitable estoppel can be based.
It is further urged by plaintiffs in error that defendant in error is not entitled to the equitable relief awarded by the decree, for the reason that there is a full, complete and adequate remedy at law for the wrongs complained of. We do not think this-cl^m is sustained by the facts. An action at law would not furnish any remedy for the injuries complained of. From the nature of the case it would be an utter impossibility to show the extent of the injury to an undeveloped mining claim by acts which render the development of such claim an impossibility. From the nature of the in jury, and by reason of its continuous character, the legal remedy is inadequate. 3 Pom.
By one of the provisions of the decree plaintiffs in error were enjoined “from diverting any of the waters [of the South Swan and Middle Swan rivers] save and by means of the American ditch, Pollard ditch and the Stevens flume, with the same capacity and grade as the same were and were wont to be used on or before the 10th day of June, 1870.” It is contended by plaintiffs in error that this provision of the decree prohibits them from changing the point of diversion of the water they have the right to use, and that it prohibits them from using such water in any manner except as originally used by them and their grantors, and that it is clearly wrong in this respect. '
We think the construction placed upon this provision of the decree by plaintiffs in error is warranted by the language used. It has been decided by this court, in Sieber v. Frink, 7 Colo. 148, that the point of diversion may he changed without affecting the right of priority, where nq change is made in the quantity of water diverted, and no one is injured by the change. In that case the use, and the place where used, were the same after the change as before. The question is now presented whether such change in the point of diversion can be made for the purpose of changing the place of the use.
The supreme court of California has had this question before it several times, and a review of some of the cases will show the holding in that state, and the reasons given therefor. In Maeris v. Bicknell, 7 Cal. 262-261, it was held that “a party who makes a prior appropriation of
The rule, as here announced, seems to make the right to change the point of diversion and use absolute and unqualified. In Water Co. v. Powell, 34 Cal. 109, it appears that plaintiffs, as prior appropriators, diverted the water of Shady creek by means of á dam across the creek, and that the dam became filled by the deposits of
This instruction was held to be erroneous, and the case has been cited as an authority against the rule permitting a change to be made in the point of diversion. An examination of the opinion will disclose the fact that, while some of the language used seems to warrant the inference that the right to change is denied, the decision is based upon the fact that, by reason of the injury alleged to be caused to defendant by the change, the act of the plaintiffs became a nuisance, so that the ruling in this case upon the facts seems to be in full accord with the rule laid down in Kidd v. Laird and Mining Co. v. Morgan, in so far as the absolute and unqualified right to change the point of diversion is limited by these cases to changes that will not injuriously affect others. In Junkans v. Bergin, 67 Cal. 267-270, the opinion contains the following statement relating to the right to change the point of diversion: “ Undoubtedly one entitled to divert a quantity of water from a stream may take the same at any point of the stream, and may change the point of diversion at pleasure, if the rights of others be not injuriously affected by the change.” In this case it was held that the change made might injuriously affect the defendants.
It seems to be well settled by these decisions that a prior appropriator of water from a stream may change the point of diversion and the place of use without affect
It follows from these views that the decree should be modified by striking therefrom the following portion, to-wit: “and from diverting any of the said waters, save and by means of the said American ditch, Pollard ditch and Stevens flume, with the same capacity and grade as the same were and were wont to be used on or before the 10th day of June, 1810; and from in any way widening or deepening said American ditch, Pollard ditch or Stevens flume; and from increasing the grade thereof; and from using the same, or either thereof, with a greater width, depth or grade than as the same were wont to be used on and before the 10th day of June, A. D. 1810,”— and inserting in place of the portion stricken out the following words, to wit: “and from diverting or using any of said waters in any way or manner whereby such diversion or use will injuriously affect the complainants or their grantees in a greater degree than they would be affected by such diversion and use of said waters as prior to the 10th day of June, 1810, was wont to be practiced by those using and enjoying the said Pollard ditch, American ditch and Stevens flume.” The costs of the writ of error and in this court should be paid by defendant in error.
De France, O., and Stalloup, 0., concur.
For the reasons given in the foregoing opinion the judgment of the court below is reversed and the cause remanded, with directions that a decree be entered in accordance with the views expressed. The cost of proceeding in this court will be taxed to defendant in error.
Reversed.'