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CRIMES. Continued..

tutes only a trespass, but to constitute larceny it is not necessary that any
particular time should elapse between the severance and the carrying
away. State v. Berryman,

199
21. Extortion-Land office.-The register of the United States land
office can not act as an attorney for an applicart for patent to mineral
land; and if he receive from such applicant a gross sum in part as his
official fee, in part as charge for services as an attorney, such receipt of
money is extortion. United States v. Waitz,

205
22. Larceny as bailees-Conversion of receipts for oil in store.-B.
was the owner of several hundred barrels of oil in the pipes or tanks of
the Union Pipe Line, for which he had two accepted orders on said com-
pany. B. delivered these orders to the firm of H. & B., oil dealers, and
took from them a receipt, the terms of which were that the oil was to be
held for storage at five cents a barrel per month. At the time of the
delivery of the accepted orders to H. & B., the oil was in the tanks or
pipes of the Pipe Line, and undistinguishable from the other oil therein.
H. & B. deposited the orders to the credit of their general account with
the Pipe Line, and thereafter deposited and drew until they became em-
barrassed, and to meet their engagements, continued to draw on their
balances on the books of the company until they failed. B. demanded
the oil, and H. & B. were unable to deliver it. Held, that the delivery
of the accepted orders was a delivery of the oil, and constituted a bail. :
ment, and the defendants having converted the oil to their own use, the
conversion was fraudulent, and they were guilty of larceny as baileea.
Hutchison v. Commonwealth,

a

208
23. Charging sole corporator, as ourner.–

r.–When a corporate ditch is
under the control of one who is the sole corporator in the company the
property may be laid and proved as the property of such person. Castle-
berry v. State of Georgia,

224
24. Pretense of title, without color, as a defense.- To justify breaking
a ditch in another person's possession under claim of right, a mere asser-
tion of title will not suffice; at least some apparent or probable right
must be proved. Id.

25. Accident in mine-Whose duty to report.-Under section 9 of
Ch. 933, Rev. Stat., 1874, relating to mines, as amended by the act of May
11, 1877, the person whose duly it is made to report any accident in any
mine or colliery causing loss of life or serious personal injury, to the mine
inspector, etc., and upon whom a fine is imposed for neglect of such
duty, is the one who has the immediate personal charge of the mine or
colliery. The owner and operator of the mine or his agent is not within
the penalty, unless he has the personal charge of the mine. Adam Sholl
v. People,

228
See INDICTMENT.

CUSTOM.

1. Evidence of custom in other mining districts. The rule of law
excluding evidence of custom in neighboring manors has been varied in
"mine countries, Derbyshire, etc.,” to admit evidence to explain or cor-

CUSTOM. Continuel.

roborate the custom of the manor in question, and the same exception
was in this case extended, by analogy, to the custom of digging turf.
Dean and Chapter of Ely v. Warren,

2:33
2. Cislom and prescription distinguished-Profit a prendre.-A cus-
tom gives a right local to a district or community; prescription is a right
attaching to the person or to a particular estate. Perley v. Langley, 235

3. Whether rights are held as a custom or as a prescription depends
upon whether they are held as a local usage, or, contra, as a personal
claim, or as dependent on a particular estate. Id.

4. All rights which may be held under a custom may be held by pre-
scription, but the reverse of this is not true. Id.

5. A profit in another's land must be established as a prescription by
the individual through his ancestors, or a corporation and its predeces-
sors, or as appurtenant to some estate held by the claimant. I.

6. No precedent for custom to take the soil. There are no authorities
that sustain the removal of the soil, or the taking of profits from the soil
of another, as a custom. Id.

7. Workings-Judgment of mine owner rot to be questioned. 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 lam and flooding claims above, a local custom so to work
having been established. Stone v. Bumpus,

278
See DISTRICT RULES.

entered upon

DAM.

1. Nuisance— Mandatory injunction lowering dam.—Where defend-
ants erected a dam which overflowed piaintiff's placer claim with the
water of the mill pond. Hold, a nuisance, and that the proper decree
should order a reduction of the dam su h number of feet as would re-
move the overflow, with a perpetual injunction to restrain the raising of
the dam abo such point. Rimsey v. Chandler,

240
2. Injunction restraining iliversion of witer.-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 ravine on the premises. W.

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 reservior should be restrained by in-
junction. Rupley v. Welch,

243
3. Deed of water, below mill.-A deed granting the right “to flow
back the water to the foot of the present overshot wheel of the mill,
and to use all the water which naturally flows below said mill." Held, to
mean the water as it flows from the mill, after use by the mill. Oregon
Iron Co. v. Trullenger,

217
4. Right to raise dam, as affected by rights of intervening claimants
above.—Where a party has appropriated the waters of a stream for ditch

DAM. Continued.

purposes by means of a dam, and afterward the stream becomes so filled
with tailings from workings above, that it becomes necessary to raise the
dam to secure the water, it does not follow that he has the right so to
raise the dam because of such unforeseen changes in the condition of the
stream. Nevada Water Co. v. Powell,

233
5. Idem.—If such further act of appropriation cause injury to inter-
vening appropriations, such intervening anpropriations must be considered
as prior thereto; the party attempting to raise such damn can not do so
upon the ground of its being a necessity, in order to secure only the full
extent of his original appropriation. Id.

6. Idem.—The appropriation carried with it the right to erect all
works necessary to the enjoyment of the water; but that appropriation
being complete and acted on, subsequent locations could be made by
others based upon the extent of that established appropriation “unless
there was something which manifested a further right.” II.

7. Upper and lower dams-Effect of booming-Damnum absque in-
juria.- In 1865 A built a dam and mill upon a certain stream; afterward
B built another dam about 155 feet below the mill-wheel of A, which
lower dam of B, however, at the time when constructed and for a long
time afterward, in no wi:e in'erfered with the mill or dam of A; but in
1869, parties owning mining claim; abɔve both dams began to work their
claims by a system entirely unknown at the time the dams in question
were built, which system (booming) consisted in alternately checking the
flow of water and then letting it out sudden'y at a full head, whereby
great quantities of tailings were carried down stream, which, settling be-
tween the two dams in question, caused an obstruction to the mill-wheel
belonging to A, the plaintiff. Held, that B, the defendant, was not re-
sponsible; that it was a damage resulting only as a remote result of his
building the lower dam, and that it was a clear instance of damnum absque
injuria. Proctor v. Jennings,

265
8. Action to abate nuisance-Damages--Proof necessary to warrant
recovery.--In an action to recover damages for the erection of a dam,
and to abate the same as a nuisance, it appeared that the defendants had
erected a dam across a cañon at a pint below a mining claim worked by
plaintiffs, which dam obstructed the flow of water and tailings so as to in-
terfere with plaintiffs' workings. Held, that to enable plaintiffs to recover
it should have appeared at the trial: 1st, 'l hat the plaintiffs owned the
ground claimed by them. 20, That the dam prevented their working to
advantage. 3d, Alternatively, that the defendants had no title to the bed
of the cañon, or if they had, that their right was acquired subsequent to
that of the plaintiffs, or if prior, that the dam was not needed to enable
the defendants to work to advantage. Stone v. Bumpus,

271
9. Injunction--Dam to stop tailing8.-A court does not abuse its dis-
cretion 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. Nelson v. O'Neal,

270)
10. Injuries from breaking dam.- If a dam constructed in a good
and workmanlike manner, and used with reasonable care, breaks at a

DAM. Continued.

high stage of water and injur's mining claims below, the owners of tho
dam are not liable for the damages. Ererett v. Hydraulic Flume T.
Co.,

589
11. Interruption of flow of water. --The prior appropriator of water
may recover damages for an irregular flow of water in his ditch caused
by a dam erected on the creek above the head of his ditch if the injury
sustained is not a mere temporary or trivial one. Natoma Mining Co. v.
McCoy,

590
See Ditch.

a

DELIVERY.

1. Oil burning during delivery-Loss on rendor.-Defendants pur-
chased of the company, plaintiff, four barges of oil at a certain price per
barrel. The barges were furnished by the defendant, and were partially
filled when the oil c ught fire and barges and oil were burned. Held,
that the property did not pass as fast as the oil entered the barges; that
the defendant could not have been compelled to accept partially filled
barges; that the delivery was not complete, and defendant not therefore
liable for the value of the oil. Rochester & Oleopolis Oil Co. v.
Iughey,

282
2. Idem-Control of barges during delivery.--Evidence that by the
custom of the trade at the place of delivery the barges to receive the oil
were, during the delivery, in the custody and control of the purchaser,
was properly rejec'ed as not aiding the fact of delivery. Id.

3. Incomplete sale of coal.-G. & Co. agreed in writing that they would
deliver to S. & W. at their landing in Pittsburgh two barges of coal,
"price to be 4/4 cents per bushel, Cincinnati or Louisville gauge. Terms,
cash when delivered in Pittsburgh free of all charges." S. & W. fur-
nished the barges, and the coal was placed therein by G. & Co., but
owing to the low water in the river they could not be taken to Pittsburgh.
While thus lying at the works the coal was levied upon by creditors of G.'
& Co. S. & W. brought an action of replevin. Held, that as the deliv-
ery of the coal had not taken place and the terms of the contract of sale
had not been performed, no title to the coal passed which could be en-
forced in replevin by the purchasers; and that the remedy for breach of
contract of sale was in a different action. Sneathen v. Grubbs, 286

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DEPOSITIONS.

1. Depositions de bene esse.—Though depositions taken de bene esse
are irregular, yet at the hearing of the cause it is too late to make objec-
tion on that ground. Dean and Chapter of Ely v. Warren,

233

DESCRIPTION.

1. Privilege extended by local eridence of description.- Articles of
agreement were made for erecting iron works. Such articles called for a
conveyance of a half interest in five acres, part of a certain 100 acres
called the Cat-tail Meadow. Such 100 acres were parcel of one 640-acre
tract at that time. The articles further provided “that Snodgrass shall
have fr e privilege of timber necessary for coal and building that may be
334
9. Variance-Consolidated claims one mine.- Where the complaint
filed to enforce such assessment enlarged the description so that it read,
“those certain mining claims situate on Last Chance Hill in said county

DESCRİPTION. Continued.

requisite for said works." Held, that evidence of the local situation of
the entire tract was admissible, and that the privilege would extend to
the entire tract. Snodgrass v. Ward,

30€
2. Vague entry, insufficient-Notice. --An entry so vague that it af-
fords no notice to a second enterer, who both surveys and pays before the
first entry is made sufficiently specific, is void as to such subsequent entry.
Johnston v. Shelton,

308
3. Insufficient description.-An entry of “640 acres beginning on the
line dividing the counties of Haywood and Macon, at a point at or near
Lowe's Bear-pen on the Hogback mountain and running various courses,
for complement,”' is in itself too vague and indefinite; it would amount
to a floating right. Id.

4. An entry must amount to notice. An enterer has no equity or col-
lateral claim independent of the entry; the entry should be definite in
itself, or be made so by a survey, otherwise it gives no notice to affect the
conscience of others. Id.

5. Location-Mistake in course of vein.-A misdescription in the no-
tice of a claimant of a quartz lode, posted up near the premises, in com-
pliance with the mining laws of the district in which the lode was situate,
calling for the vein in a southwesterly direction, when, in fact, the vein,
as afterward ascertained, ran nearly due south, the lode being under
ground and undeveloped, will not vitiate the claim. The thing intended
to be taken up was the vein, and its exact direction could not, of course,
be ascertained or accurately described until the vein was followed up or
explored. Johnson v. Parks,

316
6. Latent ambiguity solred by jury.-Where the lease described what
was let by the lessors as their “coal-bank and the appurtenances there-
unto belonging," and did not otherwise describe the premises leased, nor
the boundaries, in an action for the rent reserved, in which eviction is set
up as a defense, it is for the jury and not for the court to say what was
the ex ent of the demise, it being rather a latent ambiguity to be
solved, than an instrument of writing to be construed. Tiley v. Moyers,

320
7. False description rejected as surplusage.-When a deed conveys
a righ of way by two in lependent descriptions and one of them is false
in fact, such falsa description must be rejected as surplusage. Reed v.
Spicer,

330
8. Sufficient description for assessment purposes.—Where the assess-
ment called for “one mine of four thousand and four hundred feet on
Last Chance Hill," it is a sufficient description of the possessory right for
the purposes of taxition, when coupled with knowledge that

is almost a
universal custom in Nev.da to ta'se up mining claims, describing them as
so many feet of a lode, but giving no lateral boundary to the claim; and
such description will not include the fee simple title. Nerada v. Real del
Monte Co.,

a

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