tenants, nor against himself unless acted upon by the purchaser. Dexter
Lime Rock Co. v. Dexter,
291
4. Negative testimony.-The rule in respect to the relative value of
positive and negative testimony has no application to the case where one
party to a verbal mining lease testifies that it did, and the other that it
did not, include certain premises. Sobey v. Thomas,
359
5. Presumption of ownership in locator.-Every locator shall be re-
garded as the owner of all valuable deposits within his own lines until
some one shall show by a fair preponderance of testimony that such depos-
its belong to another lode having its top or apex elsewhere. Leadville
M. Co. v. Fitzgerald,
380
6. Attempt to prove two titles.-Plaintiffs attempted to derive title
through two different locations, and proved a clear title under the second,
without objection by defendants. Held, that this was sufficient to sus-
tain a verdict for plaintiffs, and that the admission of evidence relating
to the first location, even if erroneous, became immaterial. St. John
v. Kidd,
454
7. Loss of customers.-On the trial of an action for interference
with the flow of water in a ditch for supplying mines, proof that in con-
sequence of the irregularity of the flow of water, the owners of the ditch
have lost their customers, is competent evidence as showing that the
damage to the plaintiff was not trivial or temporary, but of such a charac-
ter as to cause actual and serious injury. Natoma Mining Co. v.
McCoy,
8. Cross-examination on the sources of appropriation.—The defense
to a suit for the diversion of water from Gold creek was that plaintiffs had
only appropriated 100 inches of the water, and had always been allowed
that much. Held, that defendants might show by cross-examination of
plaintiffs' witness that the excess of water in plaintiffs' ditch over 100
inches came from another source than Go.d creek. Caruthers v. Pember-
ton,
9. Conflicting testimony-Duty of courts.-The duty of determining
the truth where testimony is conflicting, belongs almost exclusively to the
nisi prius courts, but it is also the duty of all courts to ascertain whether,
upon any given state of facts it can be harmonized, before rejecting any
of it. Barnes v. Sabron,
674
See CONFUSION; DEPOSITIONS; DISCOVERY, 12; DISTRICT RULES, 19,
20, 21; EJECTMENT, 1, 2; EXPERT; LOCATION, 10; PLEADING AND
PRACTICE, 13, 24, 28; POSSESSION, 2; WITNESS; WATER, 18.
1. Opinion of experts-Cause of injury to water ditch.-Witnesses
called to prove the damages done to a ditch as the result of mining in
proximity to it can not, on the direct examination, be questioned as to the
effect of similar mining at points not in controversy, although the same
kind of soil, etc., was alleged to exist at such point, so as to induce the
idea of similar results, by comparison. The proper course in such cases is
to take the opinion of witnesses who have examined the premises and are
otherwise qualified to julge intelligently of the cause producing the in-
jury. Clark v. Willett,
EXTORTION-See CRIMES, 21.
1. Evidence sufficient to justify findings relative to gold mining.—A
jury is justified in finding that the defendant is engaged in mining for
gold when both plaintiff's and defendant's witnesses speak of his "claim,”
and of his labor as "mining," and also of his 'sluice-boxes," "wing
dam," and of his mode of "working claim and "depositing tailings,"
when there is no counter testimony. Hill v. Smith,
2. Presumption as to findings.—In such a suit, the trial being by the
court without a jury and judgment rendered for defendant, if no findings
of fact are made, the presumption is that all issues were found against
the plaintiffs. Clark v. Willett,
See PLEADING AND PRACTICE, 35.
1. Flumes are parcel of the ditch.-Flumes constructed at different
points on the line of a ditch are mere connecting links over ravines and
gulches, and do not change the general character of the work as an exca-
vation; the whole must be regarded as a ditch. Ellison v. Jackson
Water Co.,
559
1. Forfeiture distinguished from abandonment.-The term forfeiture
means the loss of a right to mine a particular piece of ground previously
acquired, by neglect or failure to comply with the rules and regulations
of the bar or diggings in which the ground is situate. As a defense, it is
entirely distinct from that of abandonment. It involves no question of
intent, which is the principal question in the defense of abandonment,
but involves only the question-has the party observed the mining rules
and regulations? St. John v. K dd,
455
2. Forfeiture considered as aiding development.-The condition of
development should be attached to every mining claim. The policy of
the government is to encourage the extraction of the precious metals, and
courts should maintain that construction of mining customs which will
accomplish this end. This policy considered with relation to enforcing
forfeitures. King v. Edwards,
480
GOLD DUST-See CRIMES, 19.
1. Amending caption for indictment.--Where the style of the court
is misdescribed in the caption of an indictment, it may be amended on
motion of the district attorney. Farnum v. United States,
2 Description of letters in indictment for secreting same. In an in-
dictment against a mail carrier for secreting or embezzling letters, it is
not necessary to state to whom the letters were sent nor by whom they
were written. Id.
3. Indictment for larceny of ore-Severance from realty.-It was
objected to an indictment for the larceny of "610 pounds of silver-bear-
ing ore," that the property alleged to have been stolen savored of the
realty, and the indictment did not show it to be personal property.
Held, that the words "silver-bearing ore" refer to a portion of vein
matter which has been extracted from a lode and assorted, separated
from the mass of waste rock and earth and thrown aside for milling or
smelting purposes, or taken away from the ledge; and that they necessa-
rily imply a severance from the freehold. State v. Berryman,
199
4. Embezzlement-Larceny by bailee.—The first count of the indict-
ment charged the defendants with embezzlement as "trustees and
agents;" the third, with embezzlement as "balees;" the fourth, with
embezzlement as 66
trustees, agents and bailees," and the fifth with lar-
ceny as "bailees and agents." Held, that the first and fourth should
have been quashed, because they blended two or more offenses in one
count, and the third because there is no such offense at common law nor
under the code as "embezzlement as bailee." Held, also, that the fifth
count was good; that there being no such offense as "larceny as agents,"
the word "agents" did not introduce another offense into the count, but
should be rejected as surplusage. Hutchison v. Commonwealth, 209
See CRIMES.
1. Agent enjoined.-When a corporation holds possession of its
property by an agent, and such agent is discharged, and the possession of
such property is taken by another agent duly authorized. Held, that if
the possession of the latter is threatened by the former, the discharged
agent will be enjoined by the corporation from any interference with the
possession. Flagstaff M. Co. v. Patrick,
2. Injunction to prevent interference with possession.-Where there is
a well grounded fear that a discharged agent of a corporation will use
force to repossess the property in charge of its duly appointed agent, a
court of equity will protect such possession by injunction. Id.
3. Injunction to stay waste.—This remedy suggested, but not acted
upon, by the chancellor. Dean and Chapter of Ely v. Warren, 233
4. Injury already complete.-Where a mining claim had been worked
before suit in such a way by washing the earth from under the plaintiff's
ditch, that according to the testimony it must result in the ruin of the
ditch from the work already done. Held, that further work on a valuable
claim ought not to be enjoined, the result necessarily being injury to the
defendants without benefit to the plaintiffs. Clark v. Willett, 629
5. Practice-Injunction after verdict upon legal issues.--In a suit in
which equitable relief is sought by injunction, but which is entirely de-
pendent upon the legal issues, the parties have a right to claim a jury to
determine all the legal issues, and an injunction can only be granted when
the verdict of the jury is in his favor who claims such equitable relief.
Ophir Mining Co. v. Carpenter,
641
6. Possessor of water right may have injunction.-A party in posses-
sion of a ditch and the water incident to the ditch, has such an equitable
interest therein, that he can maintain an action for injunction against a
party who attempts to appropriate the same. Barkley v. Tieleke,
See DAM, 1, 2, 9.
INSTRUCTIONS-See PLEADING AND PRACTICE.
1. 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 irri-
gating ditch. Rupley v. Welch,
245
2. Irrigator not allowed to waste water.-The first appropriator is en-
titled to only so much water as is necessary to irrigate his land, and is
bound to make a reasonable use of it. Barnes v. Sabron,
674
1. Remedy for sale under judgment afterward reversed.—If a sale be
made under an erroneous judgment which is afterward reversed, and the
plaintiff in the judgment be himself the purchaser, the doctrine now is
that the former owner, after reversal, may, at his election, either have
the sale set aside and be restored to the possession, or have his action for
damages. Reynolds v. Hosmer,
658
2. Assignee of erroneous judgment liable for sale made under it.—An
action for damages for a sale under an erroneous judgment afterward re-
versed, is properly brought against the assignee of the judgment, who had
control of the execution and purchased at the sale, and the original judg-
ment creditor is not a necessary party. Id.
3. Estoppel.-The fact that such former owner has moved in the lower
court to have the sale set aside, and his motion has been denied, will not
estop him from afterward affirming the sale and maintaining his action
for damages. Id.
See PLEADING AND PRACTICE.
1. Jurisdiction of justice of peace.-Justices of the peace have no
jurisdiction to try a cause where there is an alleged injury arising out of a
diversion of water from the natural or artificial channel in which it is
conducted. Hill v. Newman,
JUSTICE OF THE PEACE-See JURISDICTION.
LARCENY-See CRIMES, 5, 11, 16, 18, 20, 22; INDICTMENT, 3.
1. Lease of mine implies covenant to work with reasonable diligence.
-Where a right to mine iron ore or other minerals is granted, in consid-
eration of the reservation of a certain proportion of the product to the
grantor, the law implies a covenant on the part of the grantee to work the
'mine in a proper manner and with reasonable diligence, so that the
grantor may receive the compensation or income which both parties must
have had in contemplation when the agreement was entered into. Koch's
and Balliet's Appeal,
151
2. Remedy at law for failure to work mines.—Where lessees, or par-
ties holding mines under implied covenant to work, have neglected and
refused to work the mines with reasonable diligence, it is very clear that
the owners have a complete and adequate remedy at law for the recovery
of such damages as they may have sustained. Id.
3. Eriction of lessee-Rent-Recoupment.-An eviction such as will
suspend rent is an actual expulsion of the lessee out of all or some part of
the demised premises; the rent already accrued and overdue is not for-
feited by the eviction, but in an action for such rent, the tenant may de-
fault the damages caused by it. Tiley v. Moyers,
4. Lease of coal bank equivalent to sale of coal.-A demise of a coal
bank for a term of years, in which the rent reserved is a fixed price per
bushel for the coal to be taken from the bank, amounts to a sale of so
many bushels as the tenant shall take during the term, for the price fixed
in the lease. Id.
5. Implied covenant for quiet possession-Rent not suspended by
eviction. Where it was a disputed point as to how much was leased,
the demise being of a "coal bank and the appurtenances thereunto
belonging," and the lessor had had undisputed possession of one coal
opening, if one only had been leased, the entry of the lessors, or others
under them, upon other parts of the tract, would not be an eviction, and
the lessee would be bound to pay for the coal taken by him from that
opening. But if the grant was co-extensive with the coal veins of the
whole tract, and the lessors, without interrupting the lessee's actual mining
operations, entered and took coal from the tract demised, they were guilty
of a breach of the implied covenant for quiet possession, and the lessee could
set off the damages resulting therefrom against the claim for rent accrued
under the lease. Such an eviction, however, would not suspend the rent,
where it has not been reserved as an equivalent for the possession of the
tract, but for the coal actually taken therefrom. Id.
6. Recoupment by lessees for ejectment and estropement.-Where
ejectment had been brought by the lessors to try the question of forfeiture,
under a provision of the lease which forbade the tenant to let the
mine stand idle for a year, in which they failed, damages therefor
could not be allowed by the jury in action for the rent, but for the
estrepement brought by them, which interrupted mining operations, dam-
ages were properly allowed and assessed by the jury under the charge of
the court. Id.
7. Lease of tortuous vein.—When lessor demised the "Watkins Range
or Works," being a vein or deposit of lead and zinc ore supposed to bear
a certain general course, but which was afterward traced to the east line
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