The Placer herald., 1856-10-04
Important Mining Case.

''S'' : NNNNO~N'
Important Mining Case.
The ripol rights of Water Companies again
On 22d August, and again on Sept mber 9th
we dwelt at some length upon an important min
ing case, in which were involved the rival rights
of two water companies. This was the case Of
the Bear River and Auburn Water and Mining
Company V. The Little York Mining Company
1t was conducted before Judge Howell of the ! ltl
judicial District Court. The principles contend
ed for hy the parties TO the suit affect vast pecu
mary interests not only their own. but the inter
ests of other Water Companies throughou the
State, and consequently, to some extent the inter
ests of large proportion Of the miners. The
case was tried before jury. who, under the di
rection of the Court, and upon the admission o
the parties, found special verdict. Subsequent
ly, the parties fully and ably argued the leading
points arising from the specific facts established
by the jury, and Judge Howell has just pronounc
ed the following decisions:
This is an action for d2magcs and perpetual
! injunction. The complaint charges that the deien-
dants divert the wat T. Of Bear River from their
natural channel. and til, r., by waste and evaporate
large port. on OF the same 10 plaintiffs injury.
That th, intercept The flow of said waters Ivy de-
taIuing the same III dams and reservoirs. and then
let th, IN oil IN such large quantities to over
flow plaintiffs bitches and l., s,rvors below. That
they greatly adult rate said waters by filing The m
with dirt, sand and sediment, whereby plantifS'
works below are greatly injured, and the value OF
SAID water greatly impaired
trial was had at the July term of this court.
when the parties made the following admissions,
and the jury under the dir clions of the Court.
found the following facts, VIZ: 1t is adm tt, d:
lst That plaintiffs and defendants are compa-
nies duly incorporated for mining and other pur-
poses uud, L the laws.
I'd. Each Company is the Owner of dam and
ditch, ly mt aus OF which the waters OF Bear Riv-
,r are divert, from the natural channel OF the
stream. aud sold and used tor mining purposes,
and by the defendants for the additional purpose
OF prOpeliing a saw mill.
Sd. The plaintiffs w,re The prior appropriations
OF the Wal' rs OF said stream. at the point where
their dam at the head Of their ditch is located
]th The deit ndants' dam and ditch were locat
cd and constructed after the location and con-
struct.on OF plaintiffs dam and ditch, by m ans Of
VIII ch the waters of said stream are conduct,
about m les from the str am and in their
course are used and sold for mining and milling
purposes.
5lh. The waters thus diverted by defendants are
returned again into Bear River and its trbuta-
ries, above plaintiffs dam. exctp such as are con
sumed by abSOrpti ON and evaporation.
1t is also adm tied that before the commence
ment of THIS SUIT plaintiffs d manded OF defend
ants that they deslst from aduterating, wasting
and detainlng said waters, and that they refused
SO to do.
And the jury found as follows, viz:
9th. The plaintiffs. by the act of defendants,
have lost 20 inches Of water per day for ninety
days during the year 1855 aud the plaintiffs had
sale for the same at one dollar per inch per day.
ST 500 90.
18th. Defendants did detan the water. and caus-
I'd the same to flow irregulary, and the plaintiffs
were damaged $3.50 %.
Sh. Defendants did aduterate the water. and
plaintiffs sustained damage to the amount OF
$4,000 90.
9Th Defendants did not wlully and wantonly
waste and ,stroy the water.
10th. Defendants used the water in reasona
bic manner and with she least injury to plaintiffs
cons quent upon its use.
llth. d. ftHdants could not have used the water
in any Other reasonable manner.
| llth. Defendants are entitled to the surplus
watt Is Of Bear River to the capacities OF their
ditch.
Total amount of damages. $3.50 90.
The Court put this proposition to the jury viz:
If the defendants have diverted and used waters
to VIII ch plaintiffs entitled have said waters
been wasted. corrupted, or detained to the mate
rial injury OF pla ntiiis' To VIII ch the jury an
sw,r, d: I'VE find the defendants have diverted
| the water belonging to the plaintiffs, but have
covered the damages in other propositions
! The plaintiffs now move the Court upon the
adm ssons OF the special verdict, ior jud dgmtnt in
the case which mot on is resisted ulol th' ground
that the verdict and admissions are insufficient 10
form Judgment. and that the injuries complAin-
ed of ar damnum aGsque injurt0.
In determining the sufficency of verdict.
whether general or sp ca we are to look TO the
issues, and the admissions, if any, made by the
| In dol i'm his inu
! The plaintiffs ella m to recover upon three
grounds: first dimtnuton of the quantity OF the
water; second, injuries to the qudtny, and third
w. for causing it to flow irregWdrIy These allie
cations are denied hy the answer, and thus the is
sues are made up. he jury have found. upon all
the ssues-frst. that the waters were diminished
twenty inches Tor ninety days during the year
| 1855: second that defendants detained the water
and caused it to flow irregularly; third, that they
did adulterate it,
1t is difficult to conceive how verdict could be
more rpsponsive to the issues and more complete
! ly within the record. Ii it be insufficient as the
basis of Judgment. it is because the facts found
do not constitute cause OF action; and this
brings us to the main question IN Inc case, ques-
tion-if the decision OF the Supr, me Court of
this State in the case Of Irwin vs. Phillips. is
susceptible of the construction and establishes
the principles contend Tor ny counsel-o OF Vi
! tai importance TO the Ia ming Interests and the
country and involving nsequenoes that call
for the most serious and careful consideration at
| the hands Of the Courts. II presents the injury,