North American Exploration Co. v. Adams

• Decision Date: 15 October 1900
• Docket Number: 1,384.
• Citation: 104 F. 404
• Parties: NORTH AMERICAN EXPLORATION CO., Limited, et al. v. ADAMS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

104 F. 404

NORTH AMERICAN EXPLORATION CO., Limited, et al. v. ADAMS et al.

No. 1,384.

United States Court of Appeals, Eighth Circuit.

October 15, 1900

(Syllabus by the Court.)

Charles J. Hughes, Jr., for appellants.

H. M Hogg, for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

This appeal challenges a decree of the circuit court which perpetually enjoins the North American Exploration Company Limited, Ernest Thalman, and Hamilton F. Kean, the appellants, from diverting the waters of Bear creek so as to prevent the same from flowing freely to the extent necessary not exceeding 180 miner's inches, for the lawful uses and purposes of the appellees, Alva Adams, Frank Adams, W. H. Trout, and George Holmes, co-partners doing business as the Chief Mining & Milling Company, in carrying on upon their mill site their concentrating plant and mill for the reduction of ores and for the operation of their mines. The appellants allege that this decree is erroneous for three reasons: (1) Because, while they concede that the grantors of the appellees first diverted and appropriated the water of this creek to a beneficial use in 1886, and thereby obtained the right to so divert and use it, yet they assert that this right had been abandoned and lost by these grantors and their successors in interest when, in 1898, the appellants diverted and used this water, and thereby acquired the superior right to it; (2) because the conveyances of the Silver Chief mill site, to which the water was diverted and on which it was used in 1886, to the appellees, did not, in terms, convey the right to divert and use the water as an appurtenant to the mill site; and (3) because neither the appellees nor their grantors ever used 180 miner's inches of water, or more than 15 miner's inches. These objections to the decree will be considered in the order in which they have been stated.

The abandonment of the right to divert and use the waters of a stream is not different in its nature or character from the renunciation of any other right which is asserted and maintained by its use. It may be express or implied. It may be effected by a plain declaration of an intention to abandon it, and it may be inferred from acts or failures to act so inconsistent with an intention to retain it that the unprejudiced mind is convinced of the renunciation. In the case in hand there was no express declaration of a surrender of the right which the grantors of the appellees acquired in 1886, and the issue of abandonment resolved itself into a question of fact, to be determined by the course of action which the parties pursued and the circumstances surrounding them as they were developed in the evidence. The facts material to this question which the evidence established were these: The waters of Bear creek, at the place where this controversy arose, run in a northerly direction. On its easterly side lie the Silver Chief mining claim and the Silver Chief mill site, which are owned by the appellees, with the exception of one acre of the mill site, upon which the mill was not situated, and to which no water was ever diverted. This acre is owned by two of the appellants. On the west side of the creek are the Nellie mining claim and the Nellie mill site, which are owned by the appellants. In 1886 and 1887 all these claims and mill sites were in the possession of the same claimants who built a mill on the Silver Chief mill site, and used it to reduce ore which they took from the Nellie mining claim, and brought to the mill on a tramway. For the purpose of operating this mill, they diverted the waters from Bear creek by means of a ditch and a pipe line, conducted it to the Silver Chief mill site, and there used it in their mill for the purpose of milling ore and producing power. It was conceded at the hearing and upon this argument that these acts gave to the owners of this property an established right in 1886 and 1887 to perpetually divert and use the waters of this creek to the extent and for the purposes for which they were used in the years 1886 and 1887. The operation of the mill proved to be unprofitable, and it was not continued. After its operation ceased the owners loaned the wheel and sold the pipe which was used to conduct the water to the mill, and in the year 1897 a snow-slide swept the mill away. During these years from 1886 to 1897 the waters of the creek do not seem to have been claimed or used by others, and there was testimony that in the years 1896 and 1897 the owners of the Silver Chief mill site turned the waters of the creek into their ditch, although it does not appear that they used it for any beneficial purpose. In September, 1896, the appellees filed a notice of their claim to the right to divert and use the water of Bear Creek through the old ditch, under the statute. In May, 1898, the appellees commenced to construct a mill on the site of the old mill upon the Silver Chief mill site, to clear out their ditch, and to build a pipe line to conduct the water over its old course to their mill site, and in the year 1898 they had completed their mill, and commenced to use the water through this ditch and pipe line to operate it.

The appellants' claim to a superior right to this water rests upon these facts: On August 28, 1896, their grantor located a ditch and water right to divert 500 miner's inches of the waters of this creek at a point above the point of diversion of the appellees, and constructed a ditch 200 feet long, and led a portion of the water of the creek into this ditch, but did not apply it to any beneficial use. In April, 1898, the appellants commenced to dig a ditch from this point of diversion, to lay a pipe line to the Nellie mill site, and to construct a power house thereon to generate electricity to light the Nellie mine. They constructed their power house, and first actually applied the waters of the creek to a beneficial use about three months after the appellees, in July,...