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


The Supreme cour, handed down an
| opinion today In the case u the crca-
cent Mining company, appellant. W the
Silver king Mining company. affirming
The Judgment Of the court below.
In It's complaint plaintiff alleged
three causes. hut 70 far as the appeal
was concerned It only dealt with the
first and third. The first cause Of ac-
lion was for an injunction TO prevent
defendants FINN usinR the waters Of
Thayno's or Shadow Lake TO operate
Ia mine.
The third cause OF action was for
an injunction ngainn, defendant main
thlnins D pipe line In a trench across
plaintiffs patented claims. Upon the
findings Judge Iiiios granted plaintiff a
permanent Injunction against any In
reference with Thayne's Lake.
ON the ownership Of the waters issu-
Ing from the Icnanncte or rhayne
tunnel. Judge liliCs found that the
tunnel had been run upon patented
mining claims belonging TO the grant
0ra Of the defendant. prior 10 the date
uf piainllfia' appropriation. nnd that
the water was an ariinclh stream ana
nut open 10 Appropriation by any one
except the defendant and itr nrantors.
Judge niles further found that dofcnd-
ant owned the stream Of water " the
1hayne tunnel and had therefore Inc
right 90 divert d before II reached
Shadow Lake a decree was then or.
dercd in accordance with the hndinrs.
From this judgment plnintln nppenlrd.
The questions raised were mainly upon
the legal effects Of the findings and TO
determine whether the proper conclu-
ulons Of law had been made.
Justice Mlnrr. who delivered todnya
opinion. holds that the basis upon
which the question should be dcier-
mined ~. the right Of plaintin % the
water by prescription. says the COURT
'erhs rule IL, that whenever the stream
IL 30 hidden IN The earth that =
course 10 not dlscovcrublc from the
a prescription Ia favor OF an adjacent
proprietor TO have an uninterrupted
how " such atr'am through the lana
M Is clear that prior 10 the time
when the tunnel was aug upon the
mining claim " the drf'nieht nc
wt,cr wars perclllting wa,er. lowing
sdeplnE or circulating In minute par
.iclsa beneath the surface thcrenf,
without banks or 1ffincd channels, aud
that ~ course was lnvlAiblc and un-
known lly The construction OF this
tunnel ,his pcfvolailnR has become an
ARTIFICIAL stream. and hus never been
diverted from the defendants land nor
10 waters taken away from ihe de-
PENDANT, or ~ graninrs. Under such
circumstances when prrcQlatng waters
have been gathered into tunnels or
bitches. and allowed % now from the
pr1prictnr'a land 20 fhe lnferilr pro-
prletor. and has been used by him a
greater period u time than shat al
lowed By shs statute % Limitations, "
has been held chat no title by pre-
rcrIp'lon has been Elined'
The court further holds that 20 have
granted the Injunction prayed Tor
would have worked a great and irrt-
parable injury % Tho defendant. WIKI.
out corresponding or any bcnef, 20 the
| plaintiff.
District Judge Hart coacurs In the
dsclhl0n; Judge Mccarty niea "a dis.
Hentlng opinion. but o1nrurs In the
| Judgment In 70 far a. e efiirma Judge
lilies awarding defendant the water In
dispute. The part OF the decision Judge
Mccariy dlrfcnts from Il the holding
that plhlnslff IL not entitled 20 edu.i-
able relief rsstralnlnF defendant from
maintaining IN pipe line across and
through palniins MINING claims.
The rigf. 90 injunc.ive rlilef" says
| Judge McCarty, docs no. depend on
the amount and the extent of Che dam
age done or suffered IN each particular
case, but depsniA moro upon the ma
ture ana Character OF the trifpasa"
Judge Mccarty concludes BY giving
/ lt az his 0niniln that the cause should
De- remanded with directions 81 enter
Judgment perpctually restraining de-
/ frudnnt from continuing che trcspiEs.
/ 10y maintaining It's pipe line through
/ plaluilfa property.