Valdez daily prospector., 1917-12-05
DAYS DO|NGS OF ....
 THE DISTRICT COURT

in the case of Frank Herman vs. John E. Andrus, ct al. The decision Is . most important one to the mining in- dustry of the territory. and is the first one rendered in this division em- bracing the question of water rights as applied to mining. In fact, but two other decisions in which points involv- ed in this action are in part included, have been rendered in the Territory. The action was directed almost en- tirely to the question of rights ac- cruing to the prior locator of water rights. where the water is put to use by the locator, as against the rights of claim owners lying between the point of diversion by the locator and the point where such water was em- ployed in mining.
 In this case, the plaintiff kernan, diverted the waters of White Creek, carried 1t by Hume and pipe line across claims 1. 2, 3 and on White Creek, belonging to defendant. and employ ed it in mining on Chititu Creek. Some months after Herman had made his water right location, installed his Hume and pipe line. the defendant. through his agents, went upon his (the defendant's) claims on White Gulch, and cut plaintiffs ditch, per mitting the water to escape. This oc- cured several times, when plaintiff appealed to the court for a temporary injunction restraining the defendant from interfering with his ditch and pipe line during the mining season of 1917. The court, sitting at Anchor age, last June. granted the tempor- ary ihunction, and last month the matter came into court on the ques- tion of making the temporary re- straining order permanent one. There were a number of intricate law problems involved, and the case was hotly contested by both sides. Messrs 1 Donohoe x Dimond. of this city ap- peared for the plaintiff. and Messrs. M. D. Leehey of Seattle and l.. N. Ray of Seward, appeared for the de- fendant. The trial of the case occu- pied several days. a number of wit nesses being examined for both sides. Following the trial. it was stipulated by counsel to submit the case to the court on briefs. both sides making short arguments. Elaborate briefs
 were submitted. and in the decision handed down by the court signal
 victory for the plaintiff.
 According to the decision the plain i tiff is adjudged the true and lawful owner and entitled to the use and en-
 jOyment of the waters flowing in White Gulch to the extent of 26OO
 miners inches (the amount claimed
 in his locatiOn) of said water divert
 ed and taken back from the creek
 flowing in White Gulch upon plain.
 tiff's placer claim No. White Gulch, as the same was appropriated. divert ed and used by the plaintiff in his mining operations during the season of 1916 and 1917, and his right and title to the water and his free use of the same is quieted against all claims of the defendant or any person claim I ing under him, and held they are verpetually enjOined from setting up any claim to said waters or any part thereof.
 1 By the terms of the decision the plaintiff is also adjudged the true and lawful owner of an easement for his ditch, Hume and pipe line over and across the placer claims of the de- fendant, Nos 1, 2. and 4. White Gulch, for the purpose of conducting and conveying the water to his plac- ed claim No. II on Chititu and No. Rex and adjoining bench claims. and the defendants and his agents and any person claiming through or under them. are forever stopped from claim ing any right thereto or any part thereof. The defendant. his agents. employees or servants are further per petually enjoined from in anywise in- terfering with the same ditch, Hume and pipe line.
 It is adjudged. however. that the defendant has the right to recover from the plaintiff. such damages as he may have sustained by reason of the use and occupancy of the ground occupied by and necessary for the maintenance of plaintiffs ditch. Hume and pipe line across said placer claims Nos. 1, 2. and 4, White Gulch.
 The judgment also gives to the ,laintiff the right to recover from the defendant his costs and disbursements