Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1898-08-29
THE SILVER EING WINS
OPINION BY ASSOCIATE JUSTICE MINER.


The Supreme Cour, handed down Al
opinion today In the case Of thc Ores
cent Mining company appellant. W tn
silver King Mining company. affirming
the Judgment 81 the court hei1s.
In It's complaint plaintiff alleged
three causes. hut 80 far as the appeal
was concerned 1t only dealt with IN,
nrst and third. The first cause Of nc.
dcn was Tor an injunction 10 prevent
dofcndan;a frrn using the waters oi
Thnync's or Shadow Lake 10 operate
lts mine.
The third cause Of action was Tor
IN Injunction against defendant min
tninlns a pipe line In a trench ACROSS
PLANTING patented claims. Upon the
findings Judge Niles grantcd plaintln q
permanent injunction against any In
trrferencc with Thnyuc'a Lake.
ON the ownership of the waters issu-
INK from the ICulmrtto or Thaynr
tunnel. Judge iiiics found that the
tunnel had been run upon patented
mining claims belonging 10 the grant
dft u the defendant. prior ~ the date
~ plaintins Appropriation. und that
the water was on ARTIFICIAL stream and
not open 10 Appropriation by any one
except the defendant and ita grantors.
Judge Hlies further found that defend.
ant owned tho stream of wafer u the
lhaync tunnel and had therefore th
right 30 divert % before u reached
shadow Lake. 4 decree was then or
dorcd In nccordance with the nndlnrH.
From this judgment plaintiff appealed.
The questions raised were mainly upun
the legal effects OF the findings and 90
determine whether the proper c0nclu-
alons ~ law had been made.
Justice Miner. who delivered todly'a
opinion. holds that the basis upon
which the question should be- deter
mined ", the right ~ piaintif o. the
water by prescription. says the court.
THE rule u. that whenever the stream
Il 10 hidden IN the earth that o.
course 10 not dlacuvcuhle from the
surface, there can be- no such thing aH
prescription Ia favor ~ an adjacent
proprietor TO have an uninterrupted
How 81 such stream through the hand
u his nplghb'
~ l. cieai that prior % the time
when thu tunnel was dug upon the
mining claim W the defendant the
wFer was percllatinE water. lowing.
s.eplnE. or circulating In minute par
ilcles beneath the surface thereof,
without banks or lcnnrd channels. and
that ~ course was Invisible and un.
known. tly thU construction uf this
iunnci ,hia pereoiaiinE has become an
ARTIFICIAL stream, and has never been
diverted from The dffondanrs land. nor
IT, waters taken away frlr The de-
fendani. or Ne rran'nrs Under such |
when pcrc1lailng waters |
have been gathered into tunnels W
bitches. ana allowed 10 nnw from the |
Or uriCtnr'H land 90 fhr luf0riIr pro. |
nrletor. and has been used hy him % |
greater period u time than shat al /
lowed by thn statute " limitations. ID |
has been held that ~ title by pre-
scrip'i1n has been Elined.'
The court further holds that 60 have
granted the Injunction prayed fir
would have worked "a great and irrs.
out corrwp1ndlng or any bCnofi 90 the
plaintiff.
District Judge Hart eoncura IN The
ieclalon; Judge McCarty nida "a dis.
ienilnE opinion. but clu1urs In fhe
Judgment ln 10 FAR as u afiirma Judge
Iilioa awarding defendant the water In
lsppie The part Of the decision Judge
Mccariy d..tcnts from r. the holding
hat p.1lnfln IL not entitled 90 aau.i
lhle RELIEF restraining defendant from
maintaining IT. pipe line acr1as and
trough Plaintiffs mining claims.
The rlgh; 90 lniuncave roller" says
Judge Mccarty. 'd1cn no. d0nend On
he amount and the extent ~ .hs dam.
go done or suffered IN each particular
1He, but depends urlrc uuon the ma
urc ana character OF The ir5spla."
judge Ncclrly concludes BY giving
a. his opinlln shat the cause should
s remandsd with directions d cnfgr
Judgment perpCiually restraining a..
ndnnt from continuing she traan1na.
y maintaining ~ pipe line through
lalntlra property