Alaska-Juneau Gold Min. Co. v. Ebner Gold Min. Co.

• Court: U.S. Court of Appeals — Ninth Circuit
• Citation: Alaska-Juneau Gold Min. Co. v. Ebner Gold Min. Co., 239 F. 638 (9th Cir. 1917)
• Decision Date: 05 February 1917
• Docket Number: 2795.
• Parties: ALASKA JUNEAU GOLD MINING CO. v. EBNER GOLD MINING CO. et al. [1]

239 F. 638

ALASKA JUNEAU GOLD MINING CO. v. EBNER GOLD MINING CO. et al. ^[1]

No. 2795.

United States Court of Appeals, Ninth Circuit.

February 5, 1917

The appellant brought a suit against the appellees to enjoin them from interfering with the appellant's asserted right to the use of a portion of the waters of Gold creek, near Juneau, Alaska. The trial resulted in a decree dismissing the complaint, and adjudging that the appellee the Ebner Gold Mining Company was entitled to the first and paramount use of the waters of Gold creek, to the extent of 10,000 miners' inches. As the last-named company is the real party in interest in the litigation, it will in this opinion be designated the appellee. The court below, upon the testimony found in substance the following facts:

(4) That as early as October, 1880, the miners in and near the vicinity of Juneau and Silver Bow basin diverted and appropriated water from streams, to be used for mining and other beneficial purposes, and ever since that date it has been the universal practice and custom to post a notice in writing in a conspicuous place at the intended point of diversion of the stream, and its waters expected to be diverted, and that the posting of such notice has always been considered the first step toward the appropriation and application of the water to mining or other beneficial use and as giving warning and notice to others of the appropriators' intention. That the posting of such notice does serve the purpose so stated. That Tripp knew of that custom, and on June 29, 1910, he attached to a board and posted in a conspicuous place on the appellee's dam which had been used by it for diverting water in its mining operations, a written notice claiming 10,000 miner's inches of water out of the said Gold creek, the notice being as follows: 'Notice is hereby given to all whom it may concern that I, the undersigned, claim 10,000 miner's inches of water flowing in this creek, or any part of 10,000 miner's inches that may be flowing at any season of the year, to be conveyed by ditch, flume, or pipe along the bank of Gold creek, with pipe or flume or both to any place on the property known as the Ebner mine, or to carry across or farther than the limits of the said mine property. This location is made on the ground this day and date, and is posted at the place known as the Ebner dam, about 1 3/4 miles up from Juneau, Alaska, on Gold creek. Dated this 20th day of June, 1910. ' That said notice could be plainly seen from a public highway which runs up Gold creek near the dam on which the notice was posted. That while Tripp signed his own name to the notice, he was acting on behalf of and for the appellee's group of mines, and the parties interested therein, and the said water was intended to be conducted from the point of intake to the appellee's mill site at the lower end of the appellee's property, and to be used in the new mill which was to be built for mining purposes. That the posting of Tripp's notice was the first step taken by any one toward future diversion and appropriation of the waters of Gold creek, and was prior to any step taken by the appellant, or any intention made manifest by the appellant of taking water from Gold creek. That not until after the appellee had followed up the posting of the notice by actual physical work at the point where the notice was posted, and after actual diversion of the water at that point, did the appellant do anything to give notice to the appellee of any claim that the appellant intended to make to the water of Gold creek, or to appropriate any portion thereof.

(5) That Tripp, long before the commencement of the suit, transferred to the appellee whatever right or title he acquired by posting the notice. That work was commenced under that notice, and has proceeded with due diligence. That soon after the filing of the notice work was commenced on the tunnel, and at the time of the commencement of the suit the tunnel had been driven 2,600 feet. That a right of way was surveyed out for a high line flume, commencing at the point where the Tripp location notice was posted, and running to a point near the lower end of the tunnel and the mill site, and a flume 3 3/4 feet by 4 feet, and about 4,000 feet long, with a carrying capacity of 3,200 miner's inches of water had been completed at the time of the commencement of the suit. That on September 14, 1910, water was diverted from Gold creek at the point where the Tripp notice was posted, and was running through a large open cut made for the purpose of laying the new flume, and this diversion was prior to any diversion made by the appellant. And the court found, in general, that the work of driving the tunnel, of laying the flume, and of constructing the mill were all diligently and actively continued.

(6) That, at the time when the appellant claims that the appellee was wrongfully depriving the appellant of the use of the water, the appellee was using the same, and it was necessary at all times for the appellee to have the same in the progress of its work.

(7) That the tunnel is being driven through the group of mining claims known as the Ebner mine, and for the benefit of which the water was located by Tripp. That all work in connection with the development and opening of the ore bodies in said mining claims since the location of the water by Tripp has been done with diligence, and that $351,000 have been expended therein, and that all this was done for the purpose of opening up the Ebner group of mining claims as a mine, so that the bodies of ore therein could be mined and milled.

(8) That the miner's rules and regulations which the appellant set out in its reply were never followed by the miners, and were never put in force, or, if they ever were followed, or put in force, thy fell into disuse and became obsolete before the rights of either of the parties to this suit were claimed to be initiated. That they are inconsistent with the general laws of the United States, and could not be enforced after the extension of organized government to Alaska in the year 1884. That the work of diversion, appropriation, and application of the water by the appellee was prosecuted to completion with reasonable diligence from the time of the inception of the right.

The court found as a conclusion of law that, as against the appellant, the appellee is the owner of, and entitled to the first use of, 10,000 miner's inches of water to be taken from Gold creek, at or in the vicinity of the place where the Tripp notice was posted, and that the rights of the appellant are subordinate thereto.

(2) That the appellee was for a long time prior to the commencement of the suit the owner of a number of contiguous quartz mining claims and mill sites in Silver Bow basin, near Juneau. That the claims contained a low-grade milling ore, bearing gold of great value. That at the upper end of the group the lode claims are high up on the mountain side, and that the mill sites are in the valley below. That there flows over and across the group Gold creek, a mountain stream carrying at certain seasons a large volume of water, and at other seasons much less by reason of cold weather. That for 15 or 20 years prior to the suit the appellee had been mining and milling the ores taken from the upper end of the group by means of a 10-stamp quartz mill, and later by a 15-stamp quartz mill, located near the upper end of the group. That for the purpose of power in such milling of the ore the appellee had diverted and appropriated and used from Gold creek all the water that was necessary-- the water being diverted near the upper end of the group of claims, and after use being returned to the creek.

(3) That some time in the year 1908 the appellee and Ebner, its general manager, concluded to mine and mill the appellee's ores on a more extensive scale, and for that purpose to drive a large working tunnel, commencing the same at the lower end of the group, upon what is known as Cape Horn No. 2 lode claim, and driving the same through said group of claims to the upper end thereof, and to erect and equip a stamp mill of 150 or 200 stamps at or near the lower end of said tunnel, and to build and construct a flume and pipe line to take water from Gold creek, at or near the point where the water had been theretofore diverted by the appellee, to a point near the lower end of said tunnel, at which point the stamp mill and other buildings were to be erected. That during the year 1909 one H. T. tripp, an experienced mining engineer, was employed by persons interested in the appellee's group of mining claims to examine and explore the mining property, and report on the advisability of mining the same on a larger scale, as had been decided by Ebner and the appellee. That Tripp made such examination and reported favorably...