Riborado v. Quang Pang Mining Company

• Decision Date: 02 March 1885
• Citation: 2 Idaho 144,6 P. 125
• Parties: RIBORADO v. QUANG PANG MINING COMPANY
• Court: Idaho Supreme Court

6 P. 125

2 Idaho 144

RIBORADO v. QUANG PANG MINING COMPANY

Supreme Court of Idaho

March 2, 1885

MINES-CUSTOMS AND REGULATIONS OF MINES-PRESUMPTIONS.-Miner's customs and regulations once adopted are presumed to be existing and in force until the contrary is proven; and in actions concerning mining claims under section 486 of our Code of Civil Procedure proof thereof must be admitted, and, when not in conflict with the laws of the territory, must govern the decision of the action.

APPEAL-FINDINGS-REVIEW ON APPEAL.-On appeal a finding of fact will not be reviewed unless the evidence upon the trial in reference thereto is fully and clearly reported in the record.

SAME-DISTURBING FINDINGS-IRRELEVANT FINDING.-If the findings of fact sustained the conclusions of law, the judgment below will not be disturbed on appeal simply for the reason that some of the findings of fact and the conclusions of law are irrelevant.

(Syllabus by the court.)

APPEAL from District Court, Lemhi County. Affirmed.

Affirmed.

Charles A. Wood, for Appellants.

The owner of mining ground has a right to prohibit the erection construction, or maintenance of any cut, ditch, or embankment upon his ground, and to remove the same, or any other obstruction placed or constructed thereon, without this express permission, unless the right is given by some mining custom or regulation. (Coma v. Freitas, 42 Cal. 339; Titcomb v. Kerk, 51 Cal. 289.) When a right of a party to mining ground or the use of water once attaches, it remains in that party or his assigns, until abandoned, unless destroyed by some law or local custom. As the mining law of a district must not only be established, but in force at the time when its operation is claimed, it is void whenever it falls into disuse or is generally disregarded, and the question whether it is in force at a given time is a matter of evidence to be decided by the jury. (Harvey v. Ryan, 42 Cal. 627.)

Huston & Gray, for Respondents.

Upon the proposition of the right to run the ditch across defendants' mining ground, we submit the following authorities: Rev. Stats., sec. 2339; Noteware v Storris, 1 Mont. 311; Laws Idaho Ter., 9th Sess., p. 70; Laws Idaho Ter., 11th Sess., p. 266; Cave v. Crafts, 53 Cal. 135. Plaintiffs have a title to said ditch and water by prescription. (American Co. v. Bradford, 27 Cal 360; Crandall v. Woods, 8 Cal. 136; Union Water Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145; Cave v. Crafts, 53 Cal. 135.) Plaintiffs had a right to appropriate the surplus water. The right of defendants' grantors was fixed by their appropriation. (Kid v. Laird, 15 Cal. 161, 76 Am. Dec. 472; Smith v. O'Hara, 43 Cal. 371; Higgins v. Barker, 42 Cal. 233; McKinney v. Smith, 21 Cal. 233; Nevada Water Co. v. Powell, 34 Cal. 109, 91 Am. Dec. 685; Lobdell v. Simpson, 2 Nev. 277, 90 Am. Dec. 537; Proctor v. Jennings, 6 Nev. 83, 3 Am. Rep. 240; Barno v. Sabron, 10 Nev. 217.) A new trial will not be granted except upon substantial grounds. (2 Graham and Waterman on New Trials, 48-50.) An erroneous finding upon an immaterial point will not justify granting a new trial. (Lovell v. Frost, 44 Cal. 471.) Nor for an error favorable to the defendants. (Wilkinson v. Parrot, 32 Cal. 102.) That the judgment is broader than the facts alleged and found will justify is no ground for a new trial. (Shepard v. McNeil, 38 Cal. 72; Moore v. Murdock, 26 Cal. 534; Ainslie v. Idaho World Printing Co., 1 Idaho 641.)

BUCK J. Morgan, C. J., and Broderick, J., concurring.

OPINION

BUCK, J.

Appeal from an order overruling motion for a new trial. This is an action for damages by Diego Riborado et al., plaintiffs, against the Quang Pang Mining Company, defendants, for an alleged injury by defendants to the ditch and dam of plaintiffs. The plaintiffs' ditch for about one thousand feet is upon the mining claim of defendants. The plaintiffs' dam or dams, built for the purpose of turning water from Sharkey creek into it, are situated off and outside of the Discovery claim, owned and worked by defendants, upon old diggings, washed out and abandoned. The defendants' claim, known as the "Discovery claim," is the prior location, and the plaintiffs' ditch was dug across it without any express license. It was rather tolerated than permitted by defendants' grantors, with the understanding that defendants should work their claim "just as if no ditch was there." The ditch of plaintiffs was commenced in 1868, and they claimed the right to put it across defendants' claim, and maintain it there, by virtue of the following miners' regulation adopted in 1866, to wit: "Each claim shall have the right to drain through any other claim or claims, but shall confine his dumpings to his own ground." The appellants claim that this regulation was void for nonuser. There was no evidence that said regulation had either fallen into disuse or had been superseded by any other. On the contrary, the evidence shows that the mining district is still in existence, and that the two claims in dispute had been worked almost, if not quite, continuously all the time since said ditch was made. If there is any custom or regulation modifying this regulation of 1866, the defendants should have proven it on the trial. (King v. Edwards, 4 Morr. Min. Rep. 484.) In the absence of such proof, the written regulation, once established, is presumed still to exist and be in force.

In the assignment of errors it is claimed that the fifth finding is unsupported by the evidence. That finding is as follows "That in 1879 the defendants washed out what was called the lower dam of plaintiffs, and set fire to and burned the upper dam." The error to this finding is alleged to be that the evidence shows that the plaintiffs' lower dam was washed out in 1878, and never afterward repaired; that the dam burned was the remnant of the old dam; and that there is no evidence of any damage to plaintiffs from said burning. After a careful study of the evidence we are unable to say that there is error in this finding. The evidence brought up is in such a confused condition, abbreviated and often in broken sentences, wanting substantives and predicates, that it is quite...