The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-08-30
1t Owns the Water From the Jean
cite Tunnel.
ENTITLED TO A PIPE LINE
OVER PROPERTY OF THE Ores
CENT MINING COMPANY.
The Crescent Owns the Natural
Waters of Shadow Lake-opinion
of the Supreme Court Was By
Justice Miner and District Judge
Hart-Judge McCarty Dissents.

In the case of the Crescent Mining com
pany, appellant. VS.. the Silver King Min
ing company, the supreme court handed
down an opinion yesterday affirming the
Judgment of the district court. Both
Chief Justice Zane and Justice Bartch
were disqualified from sitting in the case
and it was heard on appeal by Justice
Miner and District Judges Hart and Nc
Carly. The opinion of the court was
written by Justice Miner and concurred
in by District Judge Hart. while District
Judge McCarty delivered a dissenting
opinion. The dissenting opinion concurred
in the judgment as far as it affirmed that
part of the decree of the trial court
awarding the defendant the water in
dispute that issues from the Jeanette or
Thayne tunnel. situate on defendant S
mining claim. but dissented from that
part of the decision holding that plaintin
is not entitled to equitable relief restrain
ing defendant from maintaining its pipe
line across and through plaintiffs mining
claims.
FINDINGS OF THE LOWER COURT
1t appeared from the findings of the
lower court that the plaintiff in the year
1856 constructed 4 dam across the outlet
of what is called Thayne or Shadow lake,
tanned the waters flowing into said lake
and by means OF a pipe line inserted into
said lake took from the unappropriated
waters thereof sufficient water to fill its
said pipe and carried the same to the
Crescent mine for use in carrying on the
mining operations of the plaintiff; that
one of the principal sources of supply of
Shadow lake or reservoir was the stream
of water flowing from the Thayne or
Jeanette tunnel, situated in and eXcaVated
upon the Thayne and Jeanette mining
claims. the property of the defendant,
which said stream was at the date of the
division by the plaintiff of the waters OF
Shadow lake, running from said tunnel
into the lake; that the Thayne or jeanette
tunnel was run upon and excavated upon
mining claims and property owned by the
defendant prior to the year 1883 and prior
to the diversion and use of the waters
of the lake and prior to the diversion and
use of said waters and its natural source
of supply by the plaintiff, which said min
ing claims were duly patented to the
grantorS and predecessors in interest of
defendant prior to the appropriation of
any of the waters of the lake or its nat
urai source of supply: that all the water
issuing from the tunnel was developed by
the defendant and its grantorS and prede-
cessorS in interest by the running and ex-
caVatiOn of the tunnel, and that SafC
water was first encountered in said tunnel
at about 700 feet from its mouth and was
and is percolating water issuing from the
rocks in said patented mining claims, and
said water is not from any subterranean
stream having any defined course, bed
or banks, and that the waters OF said
tunnel We're not open to appropriation
the defendant. and were subject to the
control and ownership of the defendant
and the tunnel was an artificial water
course and was not a natural source OF
supply of said lake.
THE PIPE LINE.
The court below further found that the
mining claims of the plaintiff over and
across which the pipe line of the defend
ant was laid unlawfully and a trench aug
in and upon the claims unlaWfully, were
barren. rocky. unCultiVdtP0
unused mining claims and are situated
upon d barren, worthless hillside. and that
the digging of said trench and the lay
ing of said pipe line did not damage the
said claims of plaintiff. except nomin-
ally: that in the digging of the trench
and in the laying of the pipe line the de-
PENDANT did not remove earth or material
from the mining claim and did not dis
turb in any way said mining claims, eX-
cept to dig said trench and lay said pipe
line therein and then cover the same with
the earth and material taken in digging
the trench.
The opinion says. 1T is plain the OBJ
ject of the defendant was not to destroy
or injure the plaintiffs property that
could not readily be compensated in dam
ages. Its acts We're not TO destroy or in
jure the plaintiffs property, but to pre-
serve its own from destruction without
injury, except nominally, to the plaintiff,
and it is claimed that any damages arts
ing therefrom were offered to be paid.
We find no error in the record. The
findings and judgment of the trial court
are correct.
1.-The Judgment of the district court is
affirmed with costs"
THE EFFECT OF IT.
The effect of the opinion is that the
Silver King is entitled to the water from
the jeanette or Thayne tunnel and that
the Silver King is entitled to maintain
pipe line over mining claims of the
Crescent company to convey the said
water to the Silver King mine. and mill,
and that the Crescent owns the natural