Carson v. Hayes

• Citation: 65 P. 814,39 Or. 97
• Parties: CARSON et al. v. HAYES et al.
• Decision Date: 29 July 1901
• Court: Supreme Court of Oregon

65 P. 814

39 Or. 97

CARSON et al. v. HAYES et al.

Supreme Court of Oregon

July 29, 1901

Appeal from circuit court, Josephine county; H.K. Hanna, Judge.

Injunction by A.H. Carson and others against F.M. Hayes and others. From a decree in favor of plaintiffs, defendants appeal. Modified and affirmed.

This is a suit to restrain the defendants from interfering with the regular flow of the waters of Oscar creek, and from permitting the débris from their placer mines to come down to, and be deposited in, plaintiffs' ditches and reservoirs and on their mining ground. The plaintiffs are the owners of a mining claim through which Oscar creek flows. The defendants Swinden and Burkhalter own a claim on the stream immediately above, and Hayes and Jewell own five claims just above and adjoining the latter claim. Oscar creek carries but a small quantity of water, and, in order to get the benefit of it for sluicing purposes, it is necessary to place dams or storage reservoirs in the stream. These are so constructed that when the water reaches a certain height they are discharged automatically, letting the water down in heads or rushes through and over the material previously washed down by pipes and giants, carrying away the earth and débris through sluices. Some time prior to the commencement of this suit, Hayes and Jewell constructed a storage reservoir, 50 feet long and about 5 1/2 feet high, across the stream, some 2,000 feet or more above the upper line of plaintiffs' claim, which they have ever since used in their mining operations for sluicing purposes. In 1898 they built on their own land, below their mining ground, two impounding dams each 40 to 60 feet long and 3 or 4 feet high, for the purpose of retaining the débris from their mines, and thus preventing it from injuring parties below; and put in below the lower impounding dam and above the claim of Swinden and Burkhalter a self-regulating dam, designed to prevent the water used by them from going down to the lower proprietors in "heads or rushes." A short time thereafter Swinden and Burkhalter constructed a storage reservoir 47 feet long and 5 feet high at or near the upper end of their claim, some 700 or 800 feet above plaintiffs' claim, and used the waters accumulated thereby in sluicing out the material excavated by them, but made no provision whatever for retaining the débris on their own land, or for regulating the flow of water after it left their works. Plaintiffs take the waters of the creek through a ditch near the upper end of their claim. In January, 1899, they built a brush dam across the stream, some two or three feet high, for the purpose of diverting the water to their ditch and stopping the débris from the mines above. The complaint alleges that in April, 1876, A.H. Carson and the predecessor in interest of the other plaintiffs located the mining claim owned by them, and at such time appropriated all the waters of Oscar creek, conveying the same by ditch to their reservoir and mining grounds, and that they and plaintiffs have ever since used it in placer mining thereon; that defendants, by means of dams and reservoirs in the channel of the creek above the plaintiffs' mining claim, have so hindered and obstructed the flow of water as to cause it to come down in heads and rushes to the head of plaintiffs' ditch, materially interfering with their use thereof, and have been discharging tailings or débris from their mines into the channel of the creek, which has been carried down by the force of the water onto the plaintiffs' land, and into their ditches and reservoirs to their great damage. Separate answers were filed by the defendants Swinden and Burkhalter and by Hayes and Jewell both denying the wrongful acts complained of by the plaintiffs. For an affirmative defense, Hayes and Jewell allege, in substance, that they and their grantors and predecessors in interest have for more than 15 years prior to the commencement of this suit been continuously engaged in placer mining above the mine of the plaintiffs, and during all that time have used the waters and channel of the creek for mining purposes, and to carry off such portions of the silt or débris from their mines as could not be readily impounded or separated from the stream; that during all such time the plaintiffs and their grantors have stood by, and seen the defendants and their predecessors in interest spend large amounts of money in operating and improving their mining properties, without making any objection whatever to their use of the waters of the stream for the purposes stated; that their use of the waters and channel of the stream is necessary to the operation of their mines, and has always been in accordance with the custom and usage of miners in placer and hydraulic mining in like streams in Southern Oregon, and that in such use they have exercised every practical precaution to prevent any injury or damage whatever to the plaintiffs or to their property. The defendants Swinden and Burkhalter, for an affirmative defense, allege that the plaintiffs and their predecessors in interest since 1894 have stood by, and without objection have seen them and their grantors and predecessors in interest spend large sums of money in opening up and developing their mining claim, and they ought, therefore, now to be estopped to allege or prove any right to the waters of the stream superior to those of the defendants. By way of counterclaim they allege that a dam constructed by plaintiffs in the winter of 1898 and 1899 across the channel of Oscar creek caused its waters to overflow, and submerge a large portion of their mining claim to their damage in the sum of $500. Replies were filed, putting in issue the allegations of the answers, and the cause referred to a referee to take and report the testimony. Before any testimony was taken, however, a stipulation was entered into, whereby it was agreed: (1) "That there is no controversy in reference to the validity of any of the mining claims and water and ditch rights involved in this suit;" and (2) "that the location of the mining claim and of the water and ditch of the plaintiffs from Oscar creek involved in this controversy is prior in point of time to the location of the mining claims and of the water rights and ditches and ditch rights of the defendants." The manner of the use by the parties of the water and channel of the stream was not affected by the stipulation. Upon the testimony as reported by the referee, a decree was rendered in favor of the plaintiffs, and defendants appeal.

A.C. Hough, for appellants.

Geo. W. Colvig, for respondents.

BEAN C.J. (after stating the facts).

It was insisted at the argument that the amount of water to which the plaintiffs are entitled by reason of prior appropriation is open to controversy in this suit. But, as we understand the record, that question is precluded by the stipulation of the parties. The complaint alleges that the plaintiff A.H Carson and one Johnson appropriated all the waters of the stream in 1876, and that they and their successors in interest have ever since used the same in placer mining. By the stipulation it is agreed that there is no controversy about the validity of any of the water rights involved in the suit, and that plaintiffs' rights are prior in time to those of the defendants. So we take it that upon this record the plaintiffs have a prior right by appropriation to all the waters of Oscar creek. This leaves but two legal questions to be determined, so far as the issues tendered by the complaint are concerned: (1) Can a subsequent appropriator of water for mining impound the water of a stream, and send it down at irregular times and intervals, at an increased or retarded flow, to a prior appropriator, who is using it for mining purposes, so as to damage or impair its use to him? (2) Can an upper owner make use of the natural channel of the stream to carry off his mining débris, to the damage of the lower proprietor in the use and enjoyment of his claim, ditches, and mining works? Both of these questions must be answered in the negative. The first appropriator of water is entitled to use and enjoy it to the full extent of his original appropriation, without diversion or interruption by subsequent claimants. He has the right to insist that the water continue to flow to the head of his ditch or point of diversion substantially as it did when he made the first appropriation. A mere temporary or trivial irregularity, which does not cause him any actual injury, would, of course, not be a cause of suit; but, if the interruption is of such a character as to interfere with his use of the water, and cause sensible or positive injury to him, a suit may be maintained to enjoin the further commission of the wrong. Phoenix Water Co. v. Fletcher, 23 Cal. 481, is in point. It was an action to recover damages, and for an injunction to restrain the defendants, who owned a sawmill on a stream the waters of which the plaintiffs claimed by prior appropriation for mining purposes, from interfering with the regular flow of water to plaintiffs' ditch, and from throwing sawdust and other refuse into the water to plaintiffs' injury. It was admitted that the plaintiffs had a prior right to the use of the stream, and that the defendants had done, and were threatening to continue, the acts complained of; the only question being whether the injuries were of such a character as to entitle the plaintiffs to a remedy by injunction. The decree was in favor of the plaintiffs, and in discussing the question the court say: "The importance of a regular flow of water to mining ditches is apparent. The profits of the business of mining depend to a very great extent upon a steady, constant supply of water,...