The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-12-12

erous decisions. 1t will be sufficient to
recite Forbes VS.. Gracey Omitted States
Reports, 94,762) decided by the United
States supreme court in 1876.
q The tailings or refuse of a mine
are the property Of the mine owner;
but If he abandons this property by
casting it away, or by suffering it to
go where it will, beyond the boundaries
OF his own land, any one may appropri-
ate 1T, IL the owner does not reclaim it,
If 1t flow upon the land OF another, that
other is entitled to it. This common law
principle IS modified in some of the
states by its statutes comforting upon
owners the power to acquire, as by
eminent domain, rights of way, and
even dumping ground for tailings. Cali
fornia, Georgia. Idaho, Montana and
Utah are instances. But without such
formal proceeding, it would doubtless
be held everywhere that tailings al
lowed to accumulate upon private land
belong to the land owner. If the land,
at the time of such accumulation, was
part of the public domain, subject to
the United States mining laws, it Is
possible that the mine owner might
have prior right, as against a subse-
quent grantee of the United States, at
least so far as to be entitled to reclaim
and remove the tailings, before they
had, been actually appropriated by the
land owner. But, after such appropri-
from the land owner.
213; 1879, where plaintiff was found to
have the possession Of certain land
upon which tailings were deposited, and
defendant to have intruded and remov-
ed portion of such tail!ngs, the SUI
preme court of Nevada held that
coextensive with his right to the land.
In that case the tailings had come from
several quartz mills, none of which
were owned by either party.
In Jones VS.. Jackson 9th Colorado,
237; 1859 the supreme court of Colo
RADIO practically held that when tail
ings are allowed to flow upon the
ground of another he becomes entitled
to them. But the circumstances of
this case Were peculiar; and, for the
complete understanding of the decision,
the full text. either in the Colorado re-
ports, as above, or in Morrison's Min
ing Reports" volume XIV, page 70,
should be studied. 1t must suffice here
to say that the grantors of the defend
ants had located upon ground upon
which the grantors of the plaintiffs had
already deposited tailings, and, with
out formally locating or approprlating
the ground, had posted a notice, stat
ing that they claimed those tailings
and intended to wash them again. The
case involved the adequacy Of this no
tice, and the ownership of thetailings
deposited after, as well as before, the To-
cation of the ground by the defendants
The decision affirms the judgment rem
dered in favor of the defendants by the
court below.
1t appears from the general trend of
these decisions, that while refuse or
tailings belong to the owner of the
mine, he is bound, in general, to retain
them within his own land, and that, II
he allows them to escape, his subse-
quent ownership of them will depend
upon the ownership of the land upon
which they accumulate. If it is pub
lie land, he may, by suitable proceed
ings, acquire the right to occupy 1t
with his tailings, and any subsequent
appropriation of the land would take it
under the condition of that easement.
II it Is private land. he may in GER
tain states. obtain that right under
statutory provisions, the constitution
ality of which, however. IS not beyond
question. Thus, in Consolidation Chan
mel company VS.. Central Pacific Rail
road company (51st California, 269;
1870, a proceeding by the mining COM
pany, under section 1888, subdivision g.
of the California Code Of Civil Proceed
ure, to have railroad land condemned
for the purpose of flume and ttailings-
dump, was defeated on the ground that
the proceeding was unconstitutional, as
taking property for private uses. This
decision apparently inyalldates the pro-
vision of the code under which the pro-
ceeding was taken, But the funda-
mental controlling principle Is. that, in
the absence of modifying statutory or
other conditions, the tailings belong to
the owner of the land on which they
lie; in other words, they have become,
as part of the freehold, real estate ex-
actly as the material of landslide
would be.
The foregoing statement does not
comprise any consideration of questions
as to damage from tailings. The party
whose land Is overfiowed by tailings
has a remedy in law by suit for dam
ages, and remedy in equity by bill
for restraining injunction. In case
the ownership of the tailings We're of
more value than the injury suffered by
their presence, he would doubtless fail
to recover damages at law. Whether
his equity proceedings would be like
wise defeated under such circum-
stances, is less clear for equity takes
cognizance of ether than the flooding
of his home and grounds by auriferous
sands, even though their marketable
value would be thereby increased: and