Fuller v. Swan River Placer Min. Co.

• Decision Date: 30 November 1888
• Citation: 19 P. 836,12 Colo. 12
• Parties: FULLER et al. v. SWAN RIVER PLACER MIN. CO.
• Court: Colorado Supreme Court

19 P. 836

12 Colo. 12

FULLER et al. v. SWAN RIVER PLACER MIN. CO.

Supreme Court of Colorado

November 30, 1888

Commissioners' decision. Error to district court, Jefferson county.

This action was brought by several complaints to enjoin an alleged wrongful diversion and use of the waters of the South Swan and Middle Swan rivers by the plaintiffs in error, and to recover damages for such wrongful diversion and use. The defendant in error has succeeded to all the rights of the complainants in the original bill. By the decree entered the plaintiffs in error are perpetually enjoined from diverting from the natural course and channel thereof, any of the waters of the South Swan river, or of the tributaries thereof, except 250 inches thereof, which, before the 10th day of June, 1870, had been diverted by the ditch, known as the 'South Swan' or 'Pollard' ditch, and 127 inches thereof, which, before the 10th day of June, 1870, had been diverted by the ditch, known as the 'American Ditch;' and from diverting any of the waters of the Middle Swan river, except 100 inches thereof, which, before the 10th day of June, 1870, had been diverted by a certain flume, known as the 'Stevens Flume;' and from diverting any of the said waters save by means of the said American ditch, Pollard ditch, and Stevens flume. Plaintiffs in error were also enjoined from in any way or manner causing any logs, stumps, roots, rocks, gravel, tailings, or sediment to be washed or sent down into the waters of the South or Middle Swan rivers, or upon or into the flumes, sluices, pit ditches, or other works used or which shall be used by the defendant in error upon its premises, described in said decree, or upon said premises, otherwise than as prior to the 10th day of June, 1870, was wont to be practiced by those using and enjoying the said Pollard ditch, American ditch and Stevens flume.

G. B. Reed, Willard Teller, and M. B Carpenter, for plaintiffs in error.

Wells, Smith & Macon, for defendant in error.

RISING, C., ( after stating the facts as above.)

It is urged by plaintiffs in error that the evidence is insufficient to sustain the findings of fact upon which the decree is based, and particularly as to the amount of water that had been appropriated by the Pollard ditch, the American ditch, and the Stevens flume prior to the 10th day of June 1870, and as to the custom of miners to dump their tailings upon their own ground, and let them take care of themselves. We have carefully examined the evidence, and think it well sustains the finding of the court, as to the amount of water appropriated by said ditches and flume by a beneficial use thereof. The existence of the custom claimed by plaintiffs in error is not established by the evidence. By section 2393 of the General Statutes then in force it is provided that no person shall be allowed to flood the property of another person with water, or to wash down the tailings of his sluice upon the claim or property of other persons, but that it shall be the duty of every miner to take care of his own tailings, upon his own property, or become responsible for all damages that may arise therefrom. Any evidence which fails to show that defendant in error consented to the commission of the acts complained of is insufficient to confer any right to commit them. It is claimed by plaintiffs in error that the mining claims of defendant in error have little or no value for mining purposes, and that, by reason of such fact, the case made by it for relief is barren of equity. While it does not appear from the evidence how valuable the claims of defendant in error are, it does appear that they are considered to be valuable placer claims, bearing gold in paying quantities, and that the work that was interfered with by the acts complained of was being prosecuted by defendant in error for the purpose of their development; and it also clearly appears from the evidence that, until the character of the claims has been demonstrated by development, their value cannot be estimated. There is no evidence upon which to base a comparison of values between the claims of plaintiffs in error and the claims of defendant in error, and, if there was, such comparison could not be considered in determining the rights of the parties. If the claims of defendant in error are shown to be of any value, its rights therein, and to the water it has appropriated, must be protected. It is urged by plaintiffs in error that this action ought not to be maintained because of the delay of the complaints in applying for relief, and the argument of counsel for plaintiffs in error in support of this claim is based upon the fact that the building of the flume, by means of which the wrongful diversion of water, and its wrongful use, as complained of, were made, was commenced in 1871,--more than five years before this suit was brought. It does not appear from the evidence that plaintiffs in error diverted or used any of the waters of South Swan or Middle Swan rivers, to the detriment of the complaints, until September, 1876, and this action was commenced in December, 1876. Complainants were not required to institute proceedings to restrain the building of the flume, and are not estopped from maintaining this action by reason of their neglect to institute such proceedings, and there is no evidence in the case upon which an equitable estoppel can be based. It is further urged by plaintiffs in error that defendant in error is not entitled to the equitable relief awarded by the decree, for the reason that there is a full, complete, and adequate remedy at law for the wrongs complained of. We do not think this claim is sustained by the facts. An action at law would not furnish any remedy for the injuries complained of. From the nature of the case it would be an utter impossibility to show the extent of the injury to an undeveloped mining claim by acts which render the development of such claim an impossibility. From the nature of the injury, and by reason of its continuous character, the legal remedy is inadequate. 3 Pom. Eq. Jur. § 1351, and note. In the argument of counsel other objections are made to the decree, in regard to which we think it is sufficient to say that the findings of fact by the court are well sustained by the evidence, and that the decree is sustained by such findings, and is in accordance...