81 F. 73 (D.Nev. 1897), 520, Union Mill & Mining Co. v. Dangberg

Docket Nº:520.
Citation:81 F. 73
Party Name:UNION MILL & MINING CO. v. DANGBERG et al.
Case Date:May 24, 1897
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 73

81 F. 73 (D.Nev. 1897)

UNION MILL & MINING CO.

v.

DANGBERG et al.

No. 520.

United States Circuit Court, D. Nevada.

May 24, 1897

Page 74

[Copyrighted Material Omitted]

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         Complainant claims that it and its grantors have owned and used the mills above named, with the dams, ditches, and water power connected therewith sufficient to run the mills, since the following dates, and to the following extent, viz.: The Mexican Mill since March, 1860, with a capacity of 8,640 inches of water on a grade of 1 foot per mile; the Brunswick since April 22, 1861, with a capacity of 9,792 inches of water on a grade of 1 foot in 2,200 feet; the Merrimac since May 12, 1861, and used until 1888, when the mill was partially dismantled, with the capacity of 6,336 inches of water on the grade of the ditch, 3.32 inches to the rod; the Vivian, April 12, 1861, with a capacity of 7,344 inches of water flowing on a grade of 1 foot in 1,220 feet; the Santiego since April 12, 1861, with a capacity of 11,520 inches of water flowing on a grade of 2.2 feet in 1,910 feet; the Franklin since May 7, 1861, with the capacity of 5,184 inches on a grade of 1.6 feet in 1,228 feet; the Rock Point since December, 1859, with a capacity of 4,608 inches of water on the grade of the ditch.

         The following table shows the dates of the original surveys of the land upon which the respective mills are situated, with date of recording, also dates when patents were issued to complainant, its associates, or grantors.

         

------------------------------------------------------------------------------ Name of Mill. Date of Survey. Record of Survey. Patent. ------------------------------------------------------------------------------ Mexican ........... Brunswick ............ June 24, 1861. June 25, 1861. Feb. 10, 1865. Merrimac ............. May 11, 12, 1861. June 3, 1861. Sept. 15, 1864. Sept. 15, 1864. Oct. 10, 1866. Vivian ............... April 12, 13, 1861. Apr. 26, 1861. Oct. 10, 1866. Santiego ............. Apr. 12, 13, 1861. Apr. 25, 1861. Oct. 10, 1866. Franklin ............. May 30, 1863. June 19, 1863. Dec. 18, 1869. Rock Point ........... Dec. 14, 15, 1860. Dec. 21, 1860. Apr. 16, 1861. May 7, 1861. Oct. 30, 31, 1860. Feb. 23, 1861. May 11, 1867.

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         The bill, among other things, alleges, in substance, that on the 1st day of July, 1889, respondents wrongfully diverted the water, and have wrongfully continued since that time to divert the water, and threaten to continue such diversion, and, unless prevented, will continue, etc., to complainant's injury and damage; that respondents severally take and divert the water by different dams and ditches, and use the same on different parcels of land, claiming a common right to make such diversion; that complainant, in August, 1871,

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commenced 11 suits in this court against a portion of the respondents herein (about 40 in number); and that judgments therein were entered for complainant, some on the 8th day of August, and others on the 18th day of August, 1873, for the property described in the complaint as the Merrimac Mill, ditch, and water power, and it was therein adjudged that complainant was entitled to the rights of a riparian proprietor in the waters of the Carson river, and that the respondents were seized and possessed of the land described in the answer, and, as incident thereto, were entitled to the rights of riparian proprietors. These were the only judgments pleaded; but upon the trial it was shown that other similar suits were brought in the state courts, and similar decrees rendered therein, which were introduced in evidence in this case. Several of the respondents made default. Others entered into stipulations as to the character of the decree which they agreed should be entered herein, as against them; and a few others appeared, and answered separately for themselves, but a large majority of the respondents were represented by the same counsel. Their answers set up a joint defense for all the defendants so answering, and a separate defense for each. They alleged that complainant's injury, if any, was not the result of respondents' acts, but was occasioned by the excessive and unprecedented drought of the year 1889; that, as to some of the respondents, they are riparian owners, and, as such, entitled to the water under the prior judgments, pleaded against them, for stock and domestic purposes, and for the irrigation of their lands; that, as to some of the others, they are entitled to the water by prior appropriation; that, as to some of the others, they are entitled to water by prescription. Their answer alleges that complainant's co-tenant is a necessary party plaintiff, and should be brought into court; that there are other persons claiming and using the water who are not before the court; that defendants made no joint diversion or common claim to the use of the water, but diverted, claim, and used it in several and independent rights and uses, and not by virtue or under claim of common right; that, in addition to the joint or common defense, defendants severally plead their several and independent rights to the water, some of them claiming by riparian proprietorship, some by decree of the court, some by appropriation, and some by prescription, and others by right of appropriation and prescription.

         The Mexican Mill, as originally built, in 1861, had 12 stamps. It was changed in the spring of 1862 to 44 stamps. The mechanism and machinery of this mill, at the time of the commencement of this suit, as shown from the testimony in this case, consisted of 44 stamps of different weight, 20 amalgam pans, 10 settlers, 2 sulphuret pans, 2 agitators, 19 concentrators, 1 force pump, 1 grinding stone, 1 main driving shaft 160 feet long, 1 line shaft 160 feet long, 1 Archimedian screw elevator, 1 boiler feed pump, 1 dynamo with 48-inch Pelton wheel. The estimated power to run this machinery is given at 360-horse power, by the foreman of the mill. The penstock from the bottom of the petticoat to the surface of the water in the penstock is 29 feet 6 inches. The testimony of all the civil engineers shows that 50 inches of water under a 4-inch pressure equals 1 cubic foot per second. Previous to the commencement of this suit, complainant employed Capt. J. W. Haynie, a practical civil engineer, with many years of experience, as a surveyor, in the construction and operation of ditches and flumes, to measure and calculate the carrying capacity of its several ditches and mill races, and the amount of water flowing at different points in the Carson river. With reference to the quantity of water flowing in the east fork of the Carson river, he testified as follows: 'On July 14, 1889, I surveyed a section of 500 feet of the east fork of the Carson river at a point about 3/4 of a mile above the dam from which water is taken by P. Heitman's ditch from the left bank, and J. Rodenbaugh's ditch from the right bank; * * * the survey being made for the purpose of ascertaining the amount of water passing that point at that date. By careful cross sectioning at 5 equidistant points in the 500 feet, and taking 6 observations of the depth in each cross section, I ascertained the mean sectional area to be 46,525 square feet. The slope of the surface of the water was 0.00712, or at the rate of 37.614 feet per mile. The slope of the amount of water flowing was 249.60 cubic feet per second of time, or 12,480 miners' inches, 4-inch pressure. ' He also made surveys of all the ditches

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taking water from the Carson river in Carson valley. In the month of August, 1889, he surveyed a number of artificial waterways or ditches constructed for the purpose of conveying water from the Carson river to supply power to the various quartz mills along that stream, with a view of ascertaining their respective capacities. With reference to the Mexican Mill ditch, he testified that it takes water from a dam in the Carson river, and conveys the same to the Mexican Mill, a distance of 27,380 feet. 'The highest point in its bottom is 132 feet below or towards the mill from the head gate. Its total fall from this point to its discharge at the mill is 5.99, or 1.19 per mile. A box flume 427 feet in length, with vertical sides, which forms a section of the ditch, is 12 feet wide and 4.13 feet deep, giving a sectional area of 49.56 square feet, which is not greater than that of the portion of the ditch constructed through earth. Its discharging capacity is 119.776 cubic feet per second, or 5,988 miners' inches, under a 4-inch pressure. The vertical fall of the water at the point of discharge is 28 feet, and the nominal horse power yielded is 379.88, of which 80 per cent., or 303.9 would be realized.

         The following table shows the result of the measurements and calculations made by him:

         

------------------------------------------------------------------------------- Carrying Capacity Name of Ditch. in Inches under 4-Inch Pressure. ------------------------------------------------------------------------------- Mexican ........................................................... 5,988 Mexican Final measurement with a nearly full head of water ........ 6,808 Brunswick ......................................................... 9,115 Merrimac .......................................................... 5,220 Vivian ............................................................ 7,788 Santiego .......................................................... 9,400 Franklin .......................................................... 6,455 Rock Point ........................................................ 5,908

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