Ralston v. Plowman

• Decision Date: 01 January 1875
• Citation: 1 Idaho 595
• Parties: Weston Ralston And John West, Respondents, v. K. P. Plowman, Appellant.
• Court: Idaho Supreme Court

1 Idaho 595

Weston Ralston And John West, Respondents, v. K. P. Plowman, Appellant.

Supreme Court of Idaho

January 1, 1875

MINING LAW-DAMAGES.-In the absence of any agreement regulation, or custom authorizing it, one person has no right to run his tail-race or sluicing flume on the dumping-ground of another who had a prior right thereto, and no damage can be claimed of the latter for filling up such race or flume, if he do not prevent the former from dumping on his own ground.

EVIDENCE.-Parol evidence cannot be given of a mining custom, when there are written rules or regulations of the mining district in force on the same subject.

INSTRUCTIONS.-It is erroneous to instruct a jury to find a verdict according to mining customs, "if such customs are not contrary to law." It is likewise erroneous to instruct a jury, if they believe the version of the case by one or the other party to be correct, they will find in his favor.

JURY MUST FIND FACTS-COURT MUST GIVE THE LAW.-A verdict must be supported by the facts found by the jury, and the law must be given to them by the court.

APPEAL from the District Court of the Second Judicial District Boise County.

George Ainslie and Huston & Gray, for the Appellant. R. E. Foote for the Respondents.

HOLLISTER J.,

delivered the opinion.

WHITSON, J., concurred.

In this case the court permitted parol evidence to be given of the local mining customs, when it appears from the record that the regulations of the locality or mining district were recorded in the proper office, according to the laws relating thereto. The court gave to the jury an instruction that they were to find a verdict according to the mining customs, if such customs were not contrary to law.

In both these respects we think the court erred. It is well settled that where there is record evidence which can be obtained of any fact material to the issues, such evidence can only be received because it is of a higher character than parol testimony. To admit evidence of a secondary character where higher evidence of the fact is attainable, against the objections of the opposite party, is erroneous. It was not competent for the jury to determine for themselves whether mining customs were or were not contrary to law. This was a question of law, for the court to determine, and should have been settled as such before giving the case to the jury. If the customs were contrary to law, they had no validity, and should not have been given to the jury to pass upon. If not contrary to law, the jury should have been instructed that upon

finding certain facts, they should find accordingly in their verdict.

The court also instructed the jury if they found the plaintiffs' version of the case to be correct they should find a verdict in...