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lowest stage, “there are seventy-five inches of water passing down the stream, being waste water from the ditches above, and the water of Wolf Creek, a tributary of Bear River, coining in below the dams of the mining companies above," and that the mill “can run one stone upou seventy inches of water.” If the plaintiffs' water power stands thus when the season is at the driest, we can not doubt that in the wet season its efficiency is in paired much less by the exercise of the rights which passed by the deed, and perhaps not at all. The idea that this residue of power is held by the plaintiffs by newly acquired right, dating from the execution of the deed to the water and mining company, and that it is therefore subservient to the elder right of the defendants, is not only opposed to the view already taken-that the right of the plaintiffs, acquired in 1819, was neither transferred specifically by the deed of 1862, nor rendered valueless by a full exercise on the part of the grantees of the rights acquired under it-but proceeds upon a misconception of the nature of the plaintiffs’ interest. We have already given our views on the qnestion of its character, and have only to add that the plaintiffs had a prior right to the use of all the waters in Bear River, from its springs down, in so far as such use might be necessary as a means to accomplish certain results at the dam. The “water power” to which the plaintiffs were entitled at that point was the principal thing owned by them, and its enjoyment was not dependent upon any given section of Bear River, nor upon any given fraction of its waters. The streams entering the river between the plaintiffs' dam and the heads of the ditches referred to in the deed of 1862, and the drainage generally of that intermediate section, stcod in the same relation to the plaintiffs’ water power at the dam as the drainage above the heads of the ditches. The original right of the plaintiffs to the drainage between the ditch heads and the dam is obviously unaffected by the deed, and their right to the drainage of the water sheds of Bear River above that point is unaffected by it also, except as it clothes the grantees with the right to dip or pump out, or lead away, at that point an ascertained or ascertainable amount of water. The prior right of the plaintiffs is now on toot, and the only effect of the conveyance is to subject the right to the hazard of being less beneficial to the plaintiffs throughout the year, or perhaps in the dry season only, than it would have been had the deed not been given. The case stands as it would if the grantees in the deed had tapped the river at the ten mile point, and drained it to the capacity of their ditches, for a period of five years, without the consent and adversely to the plaintiffs. The right acquired by such adverse possession, however it might be a clog upon the beneficial use of the water below, would in no sense involve the plaintiffs' prior right as such; nor does it follow necessarily that its beneficial enjoyment would be at all impeded. Under the state of facts which we are now considering argumentatively, it is apparent that the defendants here. in could not say that the plaintiffs' prior rights, as against them, were at an end, and that whatever rights the plaintiffs might have to the flow of the water were newly acquired and junior to their own. A record presenting the state of facts here suggested would be like the one now before us in every substantial particular.

It seems to be conceded that the plaintiffs are entitled to judgment for the specific relief prayed for in the complaint, should the special answer be held to be invalid; but inasmuch as it appears, by admission in the supplemental bill, that the dam, if raised no higher than four feet above the original bed of the stream, would be of no prejndice to the plaintiffs, and inasmuch as the defendants in their answer to the supplemental complaint aver that the dam might be raised to a still greater height without any detriment to the superior rights of the plaintiff's; and inasmuch as the question of fact involved does not appear to have been passed upon by the court below, we can not enter a judgment determining the rights of the

parties with proper exactness. On this state of the record, we can do no more than reverse the judgment and award a new trial.

And it is so ordered.

a

GOTTSCHALL ET AL. v. MELSING ET AL

(2 Nevada, 185. Supreme Court, 1866.)

Notice alone, not a sufficient appropriation. A mere notice of intention

to appropriate a portion of the public domain for mining purposes, has generally been held a sufficient appropriation until the proper season arrives for working the claim, but a party can not, by mere notice, take up and hold a claim for five years without any intention of working it

unless water is brought to the district by artificial means. Statute of limitations. The benefits of the statute of limitations may be

secured without a special plea by defendants, when the complaint is silent as to the foundation of the right sought to be enforced.

Appeal from the District Court of First Judicial District. Judginent for defendants, and plaintiffs appeal.

The opinion states the case.

Pirzer & KEYSER, for appellants.

HillyER & WHITMAN, for respondents.

Opinion by BEATTY, J., Lewis, C. J., concurring specially in the judgment.

This was an action in the nature of an action of ejectment, brought by the plaintiff's in the month of October, 1865, to recover possession of a considerable tract of land in the center of the town of Gold Hill.

The property sued for contains a large number of houses, mills, etc., of great value in that town. The plaintiff's, to sustain their cause, proved that they and their grantors (two of the present plaintiff's being original locators, and a third a grantee of one of the original locators) located a mining claim in 1859. That claim as located was 900 by 400 feet, and included the property in controversy. The location was made by putting up a notice of the claim and sticking up a post at each corner of the parallelogram. Subsequently, it was ascertained this location interfered with a mining location of older date. The boundaries were then so contracted as to leave out the portion interfering with the older location.

The plaintiffs then went to work and prospected the claim, working on it at intervals from September, '59, to December, '60, both inclusive.

The result of this prospecting was to show the ground moderately rich in gold, so rich that it would have been a valuable mining location if water had been obtainable. But in the absence of water, which the country does not afford in its present state, the ground was worthless for inining purposes. The clain, therefore, was not worked, and the parties ceased to occupy or use it in any way, but avowed their intention of holding on to it, to be worked at a future day in the event water was brought by artificial means to the district, and to be had in sufficient quantities for mining purposes.

At the time this location was made there were one or two cabins on it occupied by others than the locatore. Since its location, there has never been water enough to work the claim except at one time, which was during the winter of 1861, which was a remarkably wet winter. Then as the water only lasted a short time, it was not available for mining purposes. Since the location of this piece of ground for mining purposes the main street of Gold Hill has been run through it, and it is compactly built up with houses for its whole length.

Whilst this ground was being built up, the plaintiffs occasionally gave notice to those who were improving that they claimed it for mining ground, and expected to occupy it and mine it if ever water was brought in.

Upon the plaintiffs resting, the defendants asked for a nonsuit. The court granted it, and plaintiffs appeal.

Whilst we can not fully concur with the judge who wrote an opinion sustaining the nonsuit in all the views which he expresses, we are perfectly satisfied with the result at which he arrived. We are satisfied the nonsuit should have been granted. The judge who tried the cause in the court below seems to think the plaintiffs showed a good and subsisting right to mine the ground in controversy in case water shonld at any future time be brought into the district. But he holds that the right to mine in the ground and extract the precious metals therefrom gives only a qualified right of possession to the miner: that others have a right to occupy ground which has been appropriated for mining purposes, so long as such occupation does not interfere with the free use of the ground for mining operations: That as this ground can not at present be use1 for mining purposes, because of the want of water, the occupation of it by others is not an infringement of the rights of the miners, and therefore they have at present no right of action. We can not see that the ininer stands in

any

different relation to the governinent from that occupied by others holding possession of any part of the public domain.

All persons settling on the public domain are mere licensees or tenants. at will of the government (except in those cases where a party is protected by some pre-emption or homestead law) and we can see no reason why one who

appropriates a portion of the public domain for mining purposes is less entitled to the sole and exclusive possession of the ground appropriated than one who appropriates a piece of the same public domain for a garden or a building lot. Indeed, law and custom have given the ininer in some respects the advantage over all other appropriators. A mere notice of appropriation or intention to appropriate a certain piece of

ground for mining purposes when the proper season arrives, • has generally been held to be a sufficient appropriation by a

miner, whilst one wishing to appropriate for other purposes can only hold by an actual appropriation and occupation. We are of the opinion the plaintiffs’ proof in this case shows they have no right whatever in the premises sued for. Whilst the law facilitates the taking up and holding of mining claims until the proper season of the year arrives for working them, it discourages the holding onto such claims without working them for long and indefinite periods.

The limitation of actions for mining claims is two years. For other actions for the recovery of real estate it is five years. The whole policy of the law is against appropriating

. the public mineral lands, and holding onto them without work. We do not think a party can go onto the public

. lands and lay a claim to a portion thereof for mining purposes, prospect the same and then leave it for an indefinite time and still retain his rights therein. Doubtless a miner

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