Crescent Min. Co. v. Silver King Min. Co.

• Decision Date: 29 August 1898
• Citation: 54 P. 244,17 Utah 444
• Court: Utah Supreme Court
• Parties: CRESCENT MINING CO., APPELLANT, v. SILVER KING MINING CO., RESPONDENT

54 P. 244

17 Utah 444

CRESCENT MINING CO., APPELLANT, v. SILVER KING MINING CO., RESPONDENT

Supreme Court of Utah

August 29, 1898

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by the Crescent Mining Company against the Silver King Mining Company. Judgment for defendant. Plaintiff appeals.

Affirmed.

Moyle Zane & Costigan and Marshall, Royle & Hempstead, for appellant:

This prescriptive period of seven years is fixed by law. But, we understand, it is contended on the other side that this statute, by the general principles of law, ought to be confined to natural water courses. But that is not the law. It has been expressly decided that prescriptive rights at common law can be acquired both in the artificially increased flow of a stream and in an artificial stream. Smith v Youmans, (Wis.) 37 L. R. A. 285; Belknap v Trimble, 3 Paige 577, 605; Mathewson v. Hoffman, 77 Mich. 421; Delaney v. Boston, 2 Harr. (Del.) 489; Middleton v. Gregorie, 2 Rich. L. 631.

Gould on Waters, sec. 225, recognizes this fact. So also Washburn Easements, *313, *315.

It will be seen that the injunction was asked on the ground of the maintenance of an occupation that would ripen into an easement, on the ground that the trespass was not fugitive or temporary, but continuous, and on the ground of a multiplicity of actions.

The title of plaintiff is undisputed, and the unlawfulness of defendant's entry and occupation is undisputed. No claim is now presented as was made upon the temporary injunction, that condemnation proceedings were pending, nor is any other defence presented of excuse or justification.

In Richards v. Dower, 64 Cal. 62, this identical question was presented. In that case the findings showed that a tunnel was run under plaintiff's ground, "but that said tunnel has not affected, and will not, if completed, affect, injuriously or otherwise, the surface ground of plaintiff's said lot; that the driving of the tunnel was not, and will not, if completed, cause the plaintiff irreparable injury or injure said lot in any way, and that the defendant is not insolvent."

The lower court on that ground, as in our case, had refused the injunction. But the upper court say (see Report at p. 64): "The findings show that the tunnel, which the defendant is constructing through the plaintiff's land, is of a permanent character. It disturbs the plaintiff's possession and if permitted to continue, will ripen into an easement. This of itself is sufficient to entitle him to an injunction. (Poirier v. Fetter, 20 Kan. 47; Johnson v. City of Rochester, 13 Hun 285; Williams v. N.Y. Cent. R. R. Co., 16 N.Y. 97.

The finding that the injury is not irreparable, is inconsistent with the findings which describe the character of the work which it is sought to have enjoined. The injury is irreparable in itself, and the solvency of the defendant is an immaterial circumstance. The findings leave no room for doubt as to the plaintiff's title to the premises, and that, coupled with the fact that the threatened injury is per se irreparable, entitles the plaintiff to the relief demanded in his complaint. And we think the error in dissolving the injunction should be corrected."

If the case just cited is good law, it decides the present case. Very rarely can a case be found so exactly "on all fours" with another case. It correctly states the law and has been repeatedly affirmed. A continuous trespass will always be enjoined. Walker v. Emerson, 89 Cal. 456; Mott v. Ewing, 90 Cal. 231; Moore v. Waterworks Co., 68 Cal. 146; Shepherd v. Manhattan Ry. Co., 117 N.Y. 442; Kirkendall v. Hunt, 4 Kan. 521; Poirier v. Fether, 20 Kan. 47; Miller v. Lynch, 149 Pa. St. 460; Johnson v. Rochester, 13 Hun 285; Robertson v. Smith, 7 Min. Rep. (Mont.) 196; Valentine v. Schnebet, 38 N.Y.S. 417; 3 Pomeroy Eq., Jur. sec. 1357.

The case of Thorn v. Sweeney, 12 Nev. 251, is contra, but it is so clearly against authority that it ought not to be followed.

Dickson, Ellis & Ellis. for respondent.

MINER, J. HART, District Judge, concurs. McCARTY, District Judge, dissenting.

OPINION

MINER, J.:

It appears from the findings of the lower court that the plaintiff in the year 1886 constructed a dam across the outlet of what is called "Thayne" or "Shadow" Lake, and by this means impounded and retained the waters flowing into said lake, and, by means of a pipe line inserted into said lake, took from the unappropriated waters thereof sufficient to fill its said pipe, and carried the same to the Crescent mine, for use in carrying on the mining operations of the plaintiff; that one of the principal sources of supply of said Shadow Lake or reservoir was the stream of water flowing from the Thayne or Jeanette tunnel, situated in and excavated upon the Thayne and Jeanette mining claims, the property of the defendant, and its grantors and predecessors in interest, which said stream of water was, at the date of the diversion by the plaintiff, as aforesaid, of the waters of said Shadow Lake, running from said tunnel into said lake; that said Thayne or Jeanette tunnel was run upon and excavated upon mining claims and mining property owned by said defendant, and its grantors and predecessors in interest, prior to the year 1883, and prior to the diversion and use of said waters of said lake, and its natural sources of supply, by said plaintiff, which said mining claims and mining property were duly patented by the United States to the grantors and predecessors in interest of defendant prior to the running and excavation of said tunnel, and prior to the appropriation of any of the waters of said lake, and its natural sources of supply; that all the water issuing from said tunnel was developed by said defendant, and its grantors and predecessors in interest, by the running and excavation of said tunnel, and that said water was first encountered in said tunnel at about 700 feet from its mouth, and was and is percolating water, issuing from the rocks in said patented mining claims, and said water is not from any subterranean stream, having any defined course, bed, or banks, and that the waters of said tunnel were not open to appropriation by said plaintiff or other person, excepting said defendant, and were subject to the control and ownership of said defendant, and said tunnel was an artificial water course, and was not a natural source of supply of said lake. The court further found that the mining claims of plaintiff over and across which the pipe line of the defendant was laid unlawfully, and a trench dug in and upon said claims unlawfully, were and are barren, rocky, uncultivated, and unused mining claims, and are situated upon a barren, rocky, and worthless hillside, and that the digging of said trench and the laying of said pipe line did not damage said mining claim of plaintiff, or either of them, in any manner whatever, except nominally; that in the digging of said trench, and in the laying of said pipe line, said defendant did not remove any earth or material from said mining claims, and did not in any way disturb said mining claims except to dig said trench, and lay said pipe line therein, and then cover the same with the earth and material taken in digging said trench.

The first question for determination is, did the lower court err in its conclusions of law and decree rendered in this action, wherein it found and decreed that the respondent was the owner, and entitled to the exclusive use and enjoyment, of all the water issuing and flowing out of the Jeanette or Thayne tunnel, mentioned and described in the complaint and findings, so long as said water is in said tunnel, and upon the mining claims of the defendant, and is entitled to divert said water of said tunnel to such uses as it may deem fit; provided such diversion be made upon the mining claims of defendant, and before the waters of said tunnel reach the said reservoir or lake known as "Shadow Lake," from which lake appellant appropriated and carried away said waters through its pipe line to its mine. The plaintiff contends that, under such a state of facts, the court should have decreed it the right to have the water percolating into and issuing from the Thayne or Jeanette tunnel, and wholly located upon the patented land of the defendant, flow uninterruptedly into Shadow Lake, located upon the land of the plaintiff, and that it was entitled to all of such waters by virtue of its alleged appropriation of the waters of said lake so formed; and that, because said plaintiff has used said waters of Shadow Lake for more than seven years, it has a prescriptive right to have the same flow from said tunnel uninterruptedly and continuously into said lake.

It is not contended that the plaintiff at any time entered upon the land of the defendant, or upon said tunnel, or appropriated the waters thereof, except after the waters had been allowed to flow into the so-called "Shadow Lake;" nor is it claimed that the plaintiff at any time interferred with defendant's possession or use of said water while it was still in the tunnel or in the mining claim of the defendant. Under such circumstances, could the plaintiff acquire, as against the defendant, any right in such water while it remained in the tunnel or in the mining claim of the defendant, from which said waters percolated into said tunnel? The waters issuing from the artificial tunnel into the lake are found to be underground, percolating waters from the mining claim of the defendant, and not waters naturally flowing in a stream with a well-defined channel banks, and course. Under such a state of facts, the law seems to be well settled that water percolating through the soil is not, and cannot be, distinguished from the soil itself. The owner of the soil is entitled...