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RAMSAY ET AL. V. CHANDLER ET AL.

(3 California, 90. Supreme Court, 1853.)

Nuisance-Mandatory injunction lowering dam. Where defendants erected a dam which overflowed plaintiff's placer claim with the water of the mill pond: Held, a nuisance, and that the proper decree should order a reduction of the dam such number of feet as would remove the overflow, with a perpetual injunction to restrain the raising of the dam above such point.

Appeal by the defendants Chandler et al. from the Eleventh Judicial District.

The complaint sets forth that the plaintiffs are owners of a certain mining claim on the South Fork of American River; and about the 1st of April, 1850, had erected a dam and dug a race sufficient to carry off the water, and leave the bed of the river dry enough to work for gold and for mining purposes; and set forth title, claiming under Winters, Marshall, and others, the admitted owners, who also granted the right to plaintiffs to tear down an old mill-dam, so as to head off the said stream above, and enable plaintiffs to work out the space occupied by the mill pond.

That said defendants, abont the 25th June, 1851, erected a dam across the said stream, below said mill, and obstructed the current, so as to throw back the water and overflow the whole claim of plaintiffs, and prevent them from working it from June 25, 1851, to 5th July, to their damage $3,000; and pray an abatement of the nuisance.

The bill further charges, that defendants are about to erect an addition upon their said dam, which if done will wholly ruin their said claim; that they (defendants) are wholly insolvent; and therefore pray for an injunction to restrain them from raising the said dam. The bill was sworn to by two of the plaintiffs; and the court granted the writ of injunction as prayed for.

The defendants first demurred to the complaint, and then answer and say, that long before the plaintiffs had purchased or established their claim, in June or July, 1850, defendants had contracted with Winters and Marshall, and others, the

1 Cole S. M. Co. v. Virginia Co., 1 Saw. 470, 686; Post INJUNCTION Mexborough v. Bower, 2 M. R. 92.

owners, who conveyed to defendants the right to excavate a race on the said South Fork, below Colonna, and to turn said stream from its course, and to erect a dam for that purpose at the point where the dam is at present, and to flow back the water so much as to enable them to work the bed of said river, below said dam, for gold-mining purposes; and for any injury that said mill company might sustain in consequence of the dam, defendants agreed to pay, and are bound to pay, ten per cent. of all gold mined on said claim; and defendants claim a right to flow back the water, under the said contract, as far as necessary to enable them to drain and work the bed of said river. They also claim by priority of location, and pray a dissolution of the injunction, etc.

The cause was submitted to the court without a jury.

Both parties claimed under the same company, called "The Colonna Saw-mill Company," of which Winters and Marshall are members.

Plaintiffs proved, that in December, 1851, they purchased of said company their entire right to the mill (except the house and machinery), mill-dam, the mining claim described in the bill, the water privileges of said company, the right to tear away the dam, to cut a race for the purpose of draining the bed of the river for mining purposes, and raising a dam at the head of the race for diverting the water, for which they paid $7,500 down, and were to pay five per cent. out of all the gold taken from the said claim; and that plaintiffs took possession immediately after said purchase, and expended thereon labor and money to the amount of forty or fifty thousand dollars. To the introduction of this testimony defendants objected. The court overruled the objection, and defendants excepted.

Plaintiffs further proved, that about the 25th June, 1851, they had completed their race, and had turned the water of the river into it, by means of a dam at the head thereof, and had drained the bed for mining purposes, and were proceeding to take from said dam large quantities of gold, when the defendants erected a dam about eight feet high across the said river, and flowed the said river back on the mill-wheel to the depth of two or three feet, and on the plaintiffs' claim to the same depth, and prevented the plaintiffs from working the

same; that plaintiffs had one hundred men at the time, who were prevented from working by the back-water, from the 25th June until the trial, and that labor was worth from four to five dollars per day.

Defendants read in evidence certain articles of agreement, made with the mill company on the 17th June, 1850, authorizing defendants to cut a race or canal across a neck of the mill company's land, near the said mine, so as to lay bare the bed of the said river for mining purposes. That they commenced immediately after the date of the articles on the tunnel, and in November on the dam, which in March, 1851, was raised to its present height; a part of the dam was washed away, and was replaced shortly before this suit was brought, and is no higher than is necessary to turn the water into the tunnel as the same is now constructed.

Plaintiffs proved that the mill was in operation at the time the agreement was made between the mill company and defendants, and making from six to eight hundred dollars per day.

They also proved that there was about twenty-two feet fall from where the water enters the tunnel to where it is discharged, the principal portion of which was at the lower end; that the tunnel could have been cut deeper some two or three feet, but at a large expense, as the floor was granite. It was also proved that the tunnel might have been made wider at the upper end, and of the same depth, without very great expense, and if enlarged either way, the water might be carried off without flooding plaintiffs' dam and pool.

The court found that defendants had trespassed on plaintiffs' rights by throwing back the water upon their mining claims to the depth of two feet, and ordered that the plaintiffs, within ten days, reduce the water to the same extent, and in the manner least injurious to defendants' dam; and that the injunction issued be perpetual, and that defendants be forever enjoined from constructing any impediment in the river, so as to raise the water above the point to which it is directed to be reduced by this judgment.

No briefs are on file.

HEYDENFELDT, Justice, delivered the opinion of the court. WELLS, Justice, concurred.

No points have been filed in this case by the counsel on either side, and we have had to examine it without such aid.

It is a bill in chancery for the abatement of a mill-dam. In the decisions of the court below upon the admission of evidence I can see no error.

The decree of the court requires a diminution of the defendants' dam to the extent of two feet. The only evidence on the question of injury shows that the plaintiffs' claim was overflowed two or three feet. The right is clearly with the plaintiffs, and so the district judge found. The decree should have ordered such a diminution of the defendants' erection as would have prevented any overflow, from that cause, of the plaintiffs' mining ground, or if necessary, an entire abate

ment.

I do not think the decree has gone beyond what is clearly warranted by the evidence.

Judgment affirmed, with costs.

RUPLEY V. WELCH ET AL.

(23 California, 452. Supreme Court, 1863.)

1 Injunction restraining diversion of water. R. was in possession of a tract of public land on which was a garden and fruit trees, and for the purpose of irrigating them, he constructed a reservoir to receive the water flowing down a rav ne on the premises. W. entered upon the premises, and began digging and sluicing for mining purposes, and threatened to divert the water from the reservoir. Held, that R. had a vested right in the water by virtue of his prior appropriation, and that the diversion of the water from the reservoir should be restrained by injunction.

2 Mining under crops-California statute allowing miners to enter on agricultural claims. The laws of California provide that the possession of public land, containing mines of precious metals, for agricultural purposes, should not preclude the working of such mines by any person desiring to do so, but that such person should give to the occupant a bond of indemnity for any damage which might be sustained by the destruction of growing crops. Held, that this law is not liable to any constitutional objection, and a miner who, having first tendered the required bond, enters upon land upon which are growing crops,

and begins mining operations, can not be treated as a trespasser, but

he is liable for the damages occasioned thereby.

3 Prior appropriation of water for irrigation. The right to mine under land occupied for agricultural purposes does not give the right to take the water already appropriated by the surface occupant by his irrigating ditch.

Appeal from the District Court, Eleventh Judicial District, El Dorado County.

This action was commenced on the thirtieth day of November, 1860. The reservoir of the plaintiff was constructed across the bed of the ravine, and defendants were digging and sluicing immediately above the reservoir, and had excavated a ditch, by which they had diverted the water from the reservoir. The other facts are stated in the opinion of the court. HUME & SLOSS, for appellants.

MCCALLUM & UPTON, for respondent.

Opinion by the Court, CROCKER, J.; NORTON, J., concurring.

This action is brought by the plaintiff to recover damages. of the defendants, for entering upon certain inclosed premises, and digging up and sluicing the same, for mining purposes; and for an injunction to restrain them from continuing these mining operations.

The premises are described in the complaint as a field of ten acres, inclosed with a rail fence, part of a larger tract in the plaintiff's possession, on which ten acres were growing crops of grain, consisting of barley, wheat, Chile and red clover, and other grasses of natural and planted growth. The plaintiff also avers, that near the place where the defendants. are at work, he has a garden and fruit trees, and for the purpose of irrigating them, he constructed a reservoir to receive the water flowing down a ravine on the premises in question; and that the works of the defendants will divert the water from the reservoir, and render it useless for the purpose of irrigating the garden and fruit trees. It does not clearly appear where the reservoir is located, but the inference, from the mode of stating, is, that the reservoir, and the garden and fruit trees, Irwin v. Phillips, 5 Cal. 140; Post WATER.