neous, for those matters could have no possible effect upon the question of title. We do not agree with the plaintiffs in their position in respect to the effect of the answer, in limiting the extent of the title or claim of the defendant, even conceding—which we do not admit that his claims, which, he alleges, "include all the earth and gravel in the bed and upon both banks of said cañon to the bed rock, as high as the water line thereof," excludes the plaintiffs' claims. The defendant expressly alleges that he owns the mining ground described in the complaint; and, besides this, he denies that the plaintiffs are the owners; and without an allegation of title in himself, it was competent to him to overcome the plaintiffs' evidence of title by proving title in himself. It is proper to remark, for the purposes of a new trial, that the complaint is radically defective, because it fails to allege that the plaintiffs possessed the right to use the cañon to convey the water and tailings from their claims. The allegation that it is the natural and proper channel and outlet for the water and tailings from those claims, is not even an argumentative averment that they have the right to its use. Judgment reversed and cause remanded for new trial. SPRAGUE, J. I dissent. NELSON V. O'NEAL ET AL. (1 Montana, 284. Supreme Court, 1871.) Injunction-Dam to stop tailings. A court does not abuse its discretion by refusing an injunction to restrain parties from building a dam on their own mining ground, to prevent injury to it by the flow of tailings from other ground. 1Tailings-Use of channel. A miner is entitled to the free use of a chan nel of a creek, to allow the water which comes down from above to flow away from his mining ground, but he has no right to fill the channel of the creek with tailings and debris, and let it flow down upon another's ground. Appeal from the Third District, Lewis and Clarke County. 'Lincoln v. Rogers, 1 Mont. 217, and other cases under TAILINGS. The facts are stated in the opinion of the court. The judgment appealed from was rendered in the District Court in August, 1870, by SYMES, J. SHOBER & LOWRY, E. W. TOOLE and G. MAY, for appellant. It is admitted by the pleadings that respondents were insolvent. The jury found that the erection of the dam higher, as complained of by appellant and threatened by respondents, would interfere with the profitable use and enjoyment of appellant's mining ground. Appellant was entitled to an injunction to restrain respondents from erecting said dam: Ramsay v. Chandler, 3 Cal. 90. An injunction is a preventive remedy, and it comports more with justice to both parties to restrain the threatened trespass, than to leave the appellant to his remedy at law, particularly when the respondents admit their insolvency and have no remedy at law: Slade v. Sullivan, 17 Cal. 102; Hill on Inj., Ch. 1, §§ 1, 5, 7, 14, 31. Appellant's mining operations will be interfered with, if respondents are not enjoined. Respondents have shown no right to trespass on appellant's ground. W. F. SANDERS, for respondents. Respondents own the ground on which the dam was erected and debris arrested. Respondents threatened to raise their dam higher to stop a trespass of appellant. They could compel appellant to stop this trespass on his own ground. The pleadings and findings do not show who has priority of right in mining. Appellant can not have judgment until the questions relating to the right of respondents to flow back on appellant's ground, debris, tailings, etc., which appellant is wrongfully attempting to flow on respondents, are settled in favor of appellant: Logan v. Driscoll, 19 Cal. 623; Am. Law Reg. 1867, 1868, p. 698. Parties must care for their own tailings on their own ground. Respondents could crib those of appellant on his own ground, but the jury find that respondents cribbed them on their own. A mere threat to commit a trespass, without an overt act, does not justify an injunction. KNOWLES, J. This is an action of trespass, brought by appellant for damages for an alleged entry upon his mining ground, and erecting a dam thereon, which stopped tailings upon the said mining ground, and alleging that the respondents threatened to continue the injury, and to erect the said dam higher, and asking for an injunction to restrain them from the commission of these wrongs. Respondents deny that appellant owns the mining ground described; admit erecting the dam and the intention to erect it higher, and aver that the dam is on their own ground, and that the same was erected to prevent appellant from running his tailings down upon their ground. The jury, in their special findings, determine that appellant does not own the mining ground upon which the dam was erected; that respondents had not interfered with the mining rights of appellant by the erection of the dam in question. They also find that the erection of the dam higher will interfere with the profitable mining operations of appellant. Upon this last finding, appellant asked an injunction of the court below, which was refused. This is assigned as error. It appears, from the complaint of appellant, that the tailings which the dam of respondents prevented from flowing down, were tailings from appellant's mining ground. The granting or refusing an injunction was discretionary with the court below. We do not think it was an abuse of discretion in refusing an injunction to restrain the respondents from building a dam on their own ground, so as to prevent appellant from committing an injury upon the same. Appellant would be entitled to the free use of the channel of the creek, to allow the water which came down from above to flow away from his mining ground, but he had no right to fill the channel of the creek with tailings and debris, and let it flow down upon respondents' ground. Order of the court below affirmed, with costs. Judgment affirmed. STONE ET AL. V. BUMPUS ET AL. (46 California, 218. Supreme Court, 1873.) Workings-Judgment of mine owner not to be questioned-Custom. It is not within the province of a court to question the judgment of the owner of a mining claim, or to determine whether one mode of use would be more beneficial than another; such ruling applied to the case of working a claim by a dam and flooding claims above, a local custom so to work having been established. Evidence-Assertion of right no threat. The declaration of the owner of a cañon claim before building a dam, that he would put in a dam that would flood plaintiff's claim (a junior claim lying above), is entirely consistent with the necessity or utility of the structure in the working of the cañon. 2 Damnum absque injuria. The erection of a dam so as to flood junior claims above, held to be damnum absque injuria. Appeal from the District Court, Fourteenth Judicial District, County of Placer. Indian Cañou is in the gold-bearing region of the Sierra Nevada mountains, in Placer county, having its source at an altitude of about forty-five hundred feet above the level of the sea. It is several miles in length, and at the place where the claims in dispute are located is about one thousand feet in depth. The bed of the cañon contains gold-bearing earth; and on the summit of the mountains, on either side of the cañon, are gold placer claims, which are worked by washing the earth through flumes, in which the gold is collected into the bed of the cañon. This earth, when it reaches the bed of the cañon, still contains gold, but ceases to be the property of the owner of the claim above. Several parties had, prior to 1850, located the bed of the cañon for a distance of more than three thousand feet for the purpose of laying a flume in its bed, in which to work the gold-bearing earth which was washed from the mountains above. Defendant Bumpus had acquired by purchase the rights of these parties. On the banks of the cañon were bars, which also contained gold; and on the 10th day of September, 1866, the plaintiffs located one of these bars, on the side of Bumpus' claims for the purpose of working it 1S. C. on former appeal, 4 M. R. 271. 2 Contra, as to senior claims, Nevada Co. v. Powell, 4 M. R. 253. as a mining claim. They immediately excavated a ditch, about three fourths of a mile in length, from their claim up the side of the mountain to a ravine, for the purpose of obtaining water to work the same. The plaintiffs' claim could be worked in no other way than by washing the earth down the bed of the cañon. The plaintiffs had done considerable work on their claim when, in February, 1867, the defendant Bumpus constructed a dam on his cañon-claim across the bed of the cañon, at a place about seven hundred feet below the plaintiffs' claim, and thereby caused the water to flood the plaintiffs' claim, so that it could not be worked. The cañon contained a large amount of tailings which had covered up one flume, and Bumpus claimed that he could not work the same without constructing a dam which would stop the flow of the tailings until he could wash away the tailings below the dam, and lay a flume on the bed rock, and then construct another dam higher up, and go through with the same process. This action was brought to abate the dam as a nuisance. On the trial, the plaintiff, A. J. Stone, testified as follows: He said you shall "December 10, 1866, first saw Bumpus. He came to our cabin and asked us, who is working on that bar? We saidwe were. He said, did you not know that cañon has been bought and sold a dozen times, and that I own it? He said he should sue us. He then said he would not sue, but would put in a damn and make us sue. Shortly after he came down again and said, what are you going to do about that claim down there? I said, going to work it. He said he would drive us off, and we should never work it. never make a dollar out of it. We said, will you pay us for the work we have done? He said no; I did not hire you, and will not pay you. He said he would put in a dam that would flood us six feet deep with tailings. He said he thought Wilson had forbid us before. Wilson owned with Bumpus in the cañon. About the 10th of March he commenced putting in a dam across the cañon seven hundred and fifty feet below our claim. He felled trees across and made a dam seven feet high. It flooded the tailings back three feet deep on our claim. Could have worked our claim but for the dam. There was no natural outlet for our claim but the bed of the cañon. We could do no more work, and had to leave. There |