66 P. 863 | Cal. | 1901
Action for an injunction against the interference of defendant with plaintiff's ditch. The defendant filed a cross-complaint, alleging that he was the owner of the Buena Vista Quartz Mine, situated below the head of plaintiff's ditch on Duckwall Creek, and that plaintiff, by means of its ditch, had deprived defendant of the use of the water of said creek in and upon his said quartz-mining claim; also, that plaintiff had constructed its said ditch across defendant's said mine. The court gave defendant judgment for restitution of that portion of his mining claim across which the ditch was constructed, and perpetually enjoining *584 plaintiff from diverting the waters from said creek, and from in any manner preventing at least twenty inches of the natural waters thereof from flowing in their natural channel over and through said Buena Vista Quartz Mine.
The appeal before us is from an order denying plaintiff's motion for a new trial.
It appears that the plaintiff, a mining corporation, owned the Providence Mine, and in connection therewith it owned the ditch running across defendant's said Buena Vista mining claim; that the construction of this ditch, and the accompanying appropriation of water, was initiated on the twelfth day of June, 1897, by duly posting and recording a notice of appropriation of five hundred inches of the waters of said Duckwall Creek for use on said Providence Mine; that thereafter the construction of the ditch proceeded with due diligence to the time of its completion in October, 1898.
Prior to the initiation of the construction of this ditch, and on the tenth day of February, 1896, the defendant located the said Buena Vista Quartz Mine. It appears that the last-named mine, as located, overlapped to a large extent a previously located claim, known as the Cornet Mine. Duckwall Creek runs through that part of the Buena Vista which does not overlap any other claim. In 1898, the defendant constructed a dam in Duckwall Creek, and in the month of December of that year he commenced for the first time to divert and use the waters of said creek for mining and milling purposes. The court found, in effect, that the defendant, with others, duly located the Buena Vista Mine on the tenth day of February, 1896, and that the defendant ever since that date had been the owner of an interest therein.
The court further found that ever since said last-mentioned date, and until prevented by plaintiff from so doing, the defendant used the waters of said creek, to the extent of twenty inches thereof, "in and upon said Buena Vista Quartz Mine, for mining and milling purposes."
The appellant attacks both these findings, on the ground that they are not supported by the evidence, and we think the ground is well taken.
As to the latter finding, there was no evidence of the posting of any notice of appropriation, and the testimony of respondent as a witness is to the effect that his first use of *585 the water for mining purposes was not earlier than December, 1898, when he first used it in his mill. There was no evidence of any earlier use than this of said water for mining or milling purposes by defendant. So far as the appropriation of the waters of said creek are concerned, the evidence without conflict shows plaintiff's appropriation to have been prior in point of time to defendant's.
As to the other finding, we think the evidence fails to show that the Buena Vista Mine was "duly located," as against plaintiff's right to maintain his ditch, for the reason that there is no evidence of any discovery of minerals until after plaintiff's right to maintain his ditch thereon had attached. We take it to be the conceded law that there can be no valid location of a mining claim without an actual mineral discovery thereon (Erhardt v. Boaro,
Hearing in Bank denied.