65 P. 819 | Or. | 1901
delivered the opinion.
Defendants are engaged in placer mining by the hydraulic system in Taylor’s Gulch, a tributary of a stream which traverses a portion of plaintiff’s land, known as “Garris Creek’’; the necessary water, aside from that contained in the gulch, being carried to it from Rocky Greek, Miners’ Creek, and Carris Creek by means of ditches. The two creeks first named also discharge into Garris Greek, and all these streams, including Miller Creek, flow more or less through a decomposed granite formation. The point of operation is located two miles above the lands of the plaintiff, and at an elevation of about three hundred feet. The defendants have been using a giant for some three.or four years, and, to prevent the tailings and debris from their mine from being carried below, they built two impounding dams in the gulch, and recently constructed a by-wash around the lower dam, by cutting a channel along the side hill above the deposit, so that the water might flow down the 'gulch without disturbing the deposits. Later, Miller and Savage connected their ditch with the by-wash, by means of which the water from the mine is conveyed across by the
The defendants seem to concede that the plaintiff has been injured materially by the washing of granite sand upon his premises along the course of Carris Creek, but they seek to account for it through causes other than such as were superinduced by their acts : (1) They say that 'an unusual freshet which occurred in the early part of 1890 was the principal cause; (2) that the plaintiff and his agents have so obstructed the stream, by felling trees and constructing dams across it, as to divert the water from its natural course, and thereby to overflow its banks ; and (3) that the deposits may be accounted for almost entirely, if not wholly, through natural erosion by the elements, and the operations of mines along Carris Creek and its tributaries by persons other than the defendants. They further contend that their impounding dams are permanent and durable structures, of sufficient capacity and efficacy to securely impound the tailings, sand, and debris
Peter Burkhalter and John Gentner began mining early in. the ’60s on Miners’ Creek, a tributary of Carris Creek, which was continued by one or both of them from time’ to time, covering a period of thirty years. The tailings from their mine were discharged into the stream, and were carried upon the land of the plaintiff to such an extent that in January, 1886, he instituted a suit against them to prevent further operations to his damage. This resulted in an agreement on the part of Burkhalter and Gentner to construct a new channel through the plaintiff’s field, and keep it open and in good order, so that the mining debris would be carried past his premises, and to be responsible for any damage that might ensue by reason of their dereliction. Early in 1890 there came a freshet carrying the sand and debris down 0arris Creek in such quantities as to fill up the new channel and overflow the plaintiff’s lands, covering a considerable tract with the deposit, thereby rendering it unproductive. Of this Mr. York made complaint, and the matter was arbitrated, and Burkhalter and Gentner paid the damages assessed. Shortly thereafter they concluded their mining operations, and sold their ditch to .the defendants, and it now constitutes one of their sources of water supply. After the new channel constructed through the plaintiff’s field had become obstructed by the freshet of 1890, the.plaintiff built a dam across it at its upper junction, with a view toNurning the water of the creek back into the old channel, deeming it the better outlet; and this, together with the felling of some trees and filling in with brush
It has been shown quite clearly that since the defendants have been engaged in hydraulic mining on Taylor’s Gulch a decomposed granite sand has been deposited by the action of Garris Creek upon plaintiff’s land along its course, and in such quantities as to very materially enlarge] the area previously covered, resfilting in further damage to him. This enlargement is estimated at one and one fifth to five or six acres. Now', we may inquire whether this later deposit came from the defendants’ mine, or may be accounted for through the natural erosion of the elements and the mining operations of -other persons. Specimen exhibits of the sand found upon the land of the plaintiff and that taken from the impounding dams have been offered in evidence, bearing a marked resemblance one to the other. Very little weight can be attached to this circumstance, however, as other specimens have been produced, coming from Miners’ Creek, Mahalley Creek, Rocky Creek, all discharging into Carris Creek, resembling these very closely. But there is evidence of the fact of a more convincing character. Mr. Wright testifies that he traced the sand up Carris Creek to Taylor’s Gulch, and thence up the gulch to the dam ; that above the junction of Taylor’s Gulch there was little or no sand discoverable in Carris Creek; and that apparently all of it came down the gulch. Several other witnesses testify also to having traced the deposit to the same source. J. W. York, brother of the plaintiff, whose land adjoins his brother’s, and through which Carris
With a view to retaining the tailings, sand, and debris from their mine, and preventing them from being carried down the gulch into Carris Creek, the defendants have constructed two restraining or impounding dams across the bed of the stream and gulch. The one first built (being the lower dam) was constructed by felling a large tree three or four feet in diameter across the channel. Smaller logs, from eight to fifteen inches through, were stood up against this, with the lower ends imbedded in the bottom of the creek. Other smaller timbers were used for carrying it up, some being placed lengthwise, and others crosswise, of the stream, and brush filled in along with these, so as to make the structure compact. The dam was built up as it filled with tailings and debris, the idea being to keep it somewhat above the tailings, so that the water would form a pond, and be drawn off gradually by percolation through the brush, and thus allow whatever sediment wras carried down to settle therein before the water would be liberated. The upper dam was built of small trees cut and thrown in across and lengthwise of the stream, and filled in with brush as it wras carried up. In dimensions, the lower dam is sixteen and one half feet high, and one hundred and sixty feet across from bank to bank, and the deposit extends up the stream for the distance of two hundred and seventy feet or more, containing about thirty thousand tons. The dimensions of the upper dam are not given, but both are carrying all the tailings they will hold. That
There is a controversy as to whether Taylor’s Gulch maybe deemed a torrential stream. That it is a natural watercourse, there can be no doubt. It is from two and one half to three miles in length, has a regular channel, is fed by a watershed formed by the hills on either side, and carries water during the rainy seasons. As described by one of the witnesses, sometimes during the rainy seasons there is very little water in it, while at others, when the snow is melting or there is a freshet, it carries from one thousand five hundred to two thousand inches. Another witness testifies that he saw it in 1890 above the defendant’s mine, and there was a large amount of water in it, — so much that it would have been dangerous to cross it with a horse. About this there is a contrariety of opinion. Other witnesses say that during heavy freshets it does not carry more than an ordinary pipe head, such as was being used at the mine. But, from what we may legitimately infer, the stream is probably of such character that when conditions are favorable water is precipi
The decree of the court below restrains the defendants from in any manner casting or discharging any waste or refuse matter from their mining operations into Carris or Miller Creek, or impounding the same at any point above the plaintiff’s premises. This decree should be affirmed, except that defendants should be allowed to impound their tailings and debris in Taylor’s Gulch, or elsewhere, as convenience may suggest, when they shall have adopted and constructed an efficient and durable system or device for the purpose, such as will meet with the approval of persons skilled in such matters and the court.j In support of these conclusions, see United States v. North Bloomfield Gravel Min. Co. (C. C.) 53 Fed. 625, and United States v. Lawrence, 53 Fed. 632. Let the decree be entered accordingly. Modified.