Gibson v. Puchta

By the Court, Rhodes, J.: The title of the respective parties is derived from possession and appropriation of the land, being public mineral land. The plaintiffs trace their title back to the fall of 1858; and the defendant’s possession commenced in the summer of the same year. We understand that the small tract cleared off by the defendant during the winter of 1865-6 and the spring of 1866, was parcel of the larger tract, of which he took possession in' 1858. This gives the defendant the better title. The plaintiffs’ tunnel did not extend to within a hundred feet of the grounds planted in potatoes by the defendant. The defendant diverted the water of an adjacent ravine and turned upon his ground a sufficient quantity to irrigate the crop of potatoes. The water percolated through the ground and came out through the tunnel, in such quantities as to prevent the plaintiffs from working therein. The plaintiffs did not enter or desire to occupy the lands in the possession of the defendant for the purpose of mining, and they are not, therefore, entitled to claim any authority, right or privilege conferred or attempted to be conferred by the Act of April 25th, 1855. (Stats. 1855, p. 145.) If the plaintiffs are entitled to a judgment for damages, or to an injunction to restrain the commission of further injuries, their right depends upon the principles and rules of the common law, applicable to cases between adjoining landholders, where the one complains that he has sustained an injury'by the acts of the other, done on his own land. The defendant had the undoubted right to cultivate and plant this tract of land; and having planted it, there can be as little question that he had the same right to irrigate it for the purpose of maturing his crop. In irrigating his land the defendant is subject to the maxim sic utere tuo ut alienum non leudas. An action cannot be maintained against him for the reasonable exercise of his right, although an annoyance or injury may thereby be occasioned to the plaintiffs. He is responsible to [317] the plaintiffs only for the injuries caused by his negligence or unskilfulness, or those wilfully inflicted in the exercise of his right of irrigating his land. (Broom. Legal Max., 274.) There is no pretence that any injury was wilfully occasioned by the defendant, and there is no finding of negligence or unskilfulness on the part of the defendant. The plaintiffs, therefore, are not entitled to judgment on the findings. Judgment affirmed.