Van Dyke v. Midnight Sun Mining & Ditch Co.

• Decision Date: 09 March 1910
• Docket Number: 1,698.
• Citation: 177 F. 85
• Parties: VAN DYKE et al. v. MIDNIGHT SUN MINING & DITCH CO.
• Court: U.S. Court of Appeals — Ninth Circuit

177 F. 85

VAN DYKE et al. v. MIDNIGHT SUN MINING & DITCH CO.

No. 1,698.

United States Court of Appeals, Ninth Circuit.

March 9, 1910

Elwood Bruner and J. Allison Bruner, for plaintiffs in error.

S. T Jeffreys and James E. Fenton, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge

ROSS Circuit Judge.

The plaintiffs in error are, and have been for a considerable period, the owners of certain placer mining claims on Big Hurrah creek, Alaska, so located as to cross that stream. They allege, and they gave evidence tending to show, that all the water of the creek is necessary for the proper working and developing of their claims. In 1902, after the location of these claims by the plaintiffs in error, the defendant in error posted notices near the creek and filed a claim in the recorder's office of the district setting forth that it had appropriated all the water of Big Hurrah creek. In pursuance of that notice, the defendant in error in the year 1904 constructed a ditch, tapping the creek above the plaintiffs in error's claims, and running for a distance of six or eight miles, by means of which ditch the defendant in error has been and is diverting all the water of the creek, thus depriving the plaintiffs in error of any of it. This ditch was constructed across the said mining claims of the plaintiffs in error. The evidence is conflicting as to whether, at the time of its construction, the plaintiffs in error objected thereto; but it does show, without conflict that they subsequently denied the right of the defendant in error to run the ditch over their land, and demanded its removal. Whereupon the defendant in error brought the present suit to condemn a right of way for its ditch over the claims of the plaintiffs in error relying on chapter 22 of title 3 of an act entitled 'An act making further provisions for the civil government of Alaska and for other purposes,' approved June 6, 1900 (Act June 6, 1900, c. 786, 31 Stat. 522).

In their answer the plaintiffs in error deny the right of the company to condemn such right of way and pray for a decree ordering the removal of the ditch and the payment of damages for the trespass committed by the company in running it on their lands. The court found that the company had a right to all of the water of Big Hurrah creek by virtue of its appropriation; that the use to which it was putting the water was a public use; and that a right of way across the plaintiffs in error's claims was necessary to the proper exercise of the public use. Accordingly, the court made an order of condemnation, and, a motion made by the plaintiffs in error for a new trial being overruled, they sued out the present writ of error to this court, which writ the defendant in error moved to dismiss, contending that the order or judgment complained of was interlocutory and not final, and that therefore the Court of Appeals is without jurisdiction.

The proceeding was under section 207 of chapter 22 of the Civil Code of Alaska, concerning eminent domain, which makes it necessary for the court to find certain facts before condemnation-- among them: (1) That the use to which the property is to be applied is a use authorized by law. (2) That the taking is necessary to such use. (3) If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.

It is upon findings so made that there is established a basis for further proceedings. The findings constitute the decision of the court upon the vital question of whether or not the property sought to be taken can be condemned at all. Congress evidently deemed them of great importance, for in the same clause of the Code making findings necessary it provided that:

'The plaintiff or the defendant, or any party interested in the proceedings, can appeal to the United States Circuit Court of Appeals for the Ninth Circuit from any finding or judgment made or rendered under this chapter as in other cases. Such appeal does not stay any further proceedings under this chapter.'

While there may be an appeal from an assessment made by commissioners after damages are assessed, nevertheless this right to have the findings and order of condemnation reviewed by this court is given in plain language. The requirement that the appeal shall be 'as in other cases' refers to the practice in the mode of taking the appeal, rather than to cases wherein an appeal may lie. We find, too, that the whole of section 207 of the Code of Alaska, as we have cited it, was taken from the Code of Civil Procedure of Montana, where it can be found in section 7334, title 7, 'Eminent Domain,' Rev. Codes Mont. 1907, or section 2214, Codes Mont. Adopted in 1895. The Supreme Court of Montana directly construed the statute in State ex rel. Davis v. District Court, 29 Mont. 153, 74 P. 200, and held that a defendant had a right of appeal from an order of condemnation made upon findings under the statute referred to, and before damages were assessed; and in Helena Power Transmission Co. v. Spratt et al., 35 Mont. 108, 88 P. 773, 8 L.R.A. (N.S.) 567, appeal was also taken from a judgment or order appointing commissioners after findings had been made.

As these interpretations of the statute conform to our own views, we overrule the motion to dismiss the writ of error and pass to the merits of the case.

The counsel for the plaintiffs in error are mistaken in saying, as they do, that the evidence introduced in the cause conclusively shows that the diversion of the waters of Big Hurrah creek by the plaintiff was not for any public use, but solely for its own purposes. If so, as a matter of course, the plaintiff had no right of condemnation. But we think the evidence was sufficient to justify the finding of the court to the effect that the plaintiff's appropriation of waters of Hurrah creek was made not only for its own benefit, but also in behalf of a public use. In pursuance of that appropriation, the plaintiff did supply the public with such waters, as the proof shows, and can be compelled to do so to the extent of its supply. That the plaintiff was incorporated for that purpose, among others, is also found by the trial court, and it hardly needs be said, in view of the provisions of section 204, c. 22, of the Alaska Code, which provides that the law of eminent domain may be exercised in behalf of 'canals, ditches, flumes, aqueducts, and pipes for public transportation, supplying mines and farming neighborhoods with water, and sites for reservoirs, ditches, flumes, pipes and dumping and storing water; roads, tunnels, ditches, flumes, pipes and dumping places for working mines,' that the plaintiff's appropriation in question was in behalf of a public use.

It is, however, a conceded fact in the case that, prior to the appropriation under which the plaintiff claims, the placer mining claims held by the plaintiffs in error were located across Hurrah creek below the point of the defendant in error's subsequent diversion, and if it be true, as is contended on behalf of the plaintiffs in error, that the commonlaw doctrine of riparian rights applies to the case, it would follow that the defendant in error had no right to divert any of the water from the creek above their claims. Apart from the fact that the court will take judicial notice of the climatic and physical conditions of the Seward Peninsula, on and in which the properties in question are situate, the evidence presented to the court below shows without conflict that that Peninsula is valuable chiefly, if not entirely, for its gold and other mineral deposits, much of it being in benches remote from the streams, and that water is essential to the washing out and procuring of the gold. Indeed, in few, if any, sections of the various mining states and territories, is water more essential for that purpose than in Alaska. To states and territories so circumstanced, it has long been settled that the common-law doctrine of riparian rights is inapplicable. It is true that a provision of the statutes of Alaska, to wit, section 367, puts in force therein a portion of the common law, but only 'so much of the common law as is applicable, and not inconsistent with the Constitution of the United States, or with any law passed or to be passed by Congress.'

In the case of Atchison v. Peterson, 20 Wall. 511, 22 L.Ed. 414, the Supreme Court of the United States held that, as respects the use of water for mining purposes throughout the Pacific states and territories, the doctrines of the common law declaratory of the rights of riparian owners were, at an early day after the discovery of gold, found to be inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection. 'By the common law,' said the court, 'the riparian owner on a stream not navigable takes the land to the center of the stream, and such owner has the right to the use of the water flowing over the land as an incident to his estate. And as all such owners on the same stream have an equality of right to the use of the water as it naturally flows, in quality, and without diminution in quantity, except so far as such diminution may be created by a reasonable use of the water for certain domestic, agricultural, or manufacturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other owner below him. Nor could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him.'

In the subsequent case of Basey v. Gallagher, 20 Wall. 682 22 L.Ed. 452, the court held that the views expressed and rulings made in the case of...