# Gold-Washing and Water Company v. Keyes

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## Dissenting Opinion

    Bradley
United States Supreme Court
96 U.S. 199
Gold-Washing and Water Company v. Keyes
ERROR to the Circuit Court of the United States for the District of California.
This was a suit in the nature of a bill in equity, commenced July 29, 1876, in a State court of California, by Keyes, the owner of certain agricultural lands situated on Bear River, against the Little York Gold-Washing and Water Company, and others, the plaintiffs in error, who were engaged in hydraulic mining upon the highlands adjacent to that river and its tributaries, to restrain them from depositing the tailings and debris from their several mines in the channel of the river. The defendants demurred to the complaint; and, before the term at which the cause could be first tried, filed their petition, accompanied by the necessary bond, for the removal of the suit to the Circuit Court of the United States for the District of California, under the provisions of the act of March 3, 1875 (18 Stat. 470). The material parts of the petition, which was otherwise in due form, are as follows:--
'Your petitioners further represent that they are the owners of certain extensive and valuable gold-bearing placer mines, situated in the counties of Placer and Nevada, in said State of California, which they claim under the laws of the United States, and are engaged in working the same by what is known as the hydraulic process of mining; that said hydraulic process necessarily requires the employment of large heads or streams of water, used through pipes or hose, under heavy pressure, for the purpose of loosening or washing the gold-bearing earth and gravel contained in said mining claims into large flumes, where the gold is separated from the earth by the action of the water, and is retained. That the gold in said claim is distributed in very fine particles throughout the entire gravel deposit, and cannot be obtained in any other manner, nor can said mining claims of your petitioners be worked in any other manner save by said hydraulic process; that in working said mines your petitioners necessarily deposit in the channels of the Bear River and its tributaries large quantities of tailings from said mines; that the said Bear River and its tributaries are the natural and only outlets for said hydraulic gold-mines; and your petitioners claim the right to work, use, and operate said mines, and, in so doing, to use the channels of Bear River and its tributaries as a place of deposit for their said tailings, under the provisions of the act of Congress of the United States, entitled 'An Act granting the right of way to ditch and canal owners over the public lands, and for other purposes,' passed July 26, 1866, and the act amendatory thereof, passed July 9, 1870, and the 'Act to promote the development of the mining resources of the United States,' passed May 10, 1872, and other laws of the United States.
'That said action arises under, and that its determination will necessarily involve and require the construction of, the laws of the United States above mentioned, as well as the pre-emption laws of the United States. That the mines of your petitioners are of great value, to wit, of an aggregate value of not less than ten millions of dollars; and that if your petitioners are prevented from using the said channels of Bear River and its tributaries as outlets for their said tailings and water, their said mines will be thereby rendered wholly valueless.'
The State court accepted the petition and bond, and transferred the suit; but the Circuit Court remanded it, on the ground that no real or substantial controversy, properly within the jurisdiction of that court, appeared to be involved. To obtain a review of this action of the Circuit Court, the present writ of error has been brought, under the provision of sect. 5 of the act of 1875, which gives authority for that purpose.
Mr. S. M. Wilson for the plaintiffs in error.
Although the construction of the act of March 3, 1875 (18 Stat. 470), under which the removal of this cause was ordered, has not been judicially settled, the sixth article of the Constitution, which differs from it only in not limiting the jurisdiction of the surts of the United States to cases of a civil nature, has been the subject of repeated decisions. Martin v. Hunter's Lessee, 1 Wheat. 304; Cohens v. Virginia, 6 id. 264; Osborne et al. v. The Bank of the United States, 9 id. 738. And the case at bar seems to be within their principles.
Another argument in favor of the jurisdiction of the Circuit Court is found in the fact that, if the case should proceed in the State court, it may eventually be brought here by the defendants, should a decision adverse to their rights under the acts of Congress be rendered. Delmas v. Insurance Company, 14 Wall. 661; Hall v. Jordan, 15 id. 393; Crapo v. Kelly, 16 id. 610.
Mr. Montgomery Blair, contra.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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