Levaroni v. Miller

By the Court, Sanderson, J.: The Judge below made no findings of the facts or conclusions of law, and it is therefore impossible for us to say from the record what he considered the facts or the law to be, except by inference from the grounds of the motion for a new trial. If, as they would seem to indicate, the Court considered as a matter of fact that the plaintiff’s homestead and improvements were established prior" to the vesting of any right to mine in the ravine above in the defendants, and that the premises of the plaintiff were in fact damaged by the water turned into the ravine by the defendants and used by them .in mining, yet as matter of law the right to mine is so far paramount to the right to inhabit and cultivate that the possessor of the former may destroy the latter right, notwithstanding it may be the older, if he finds it necessary or convenient for his purposes to do so, the Court erred. That the right of the plaintiff to inhabit and cultivate his premises was older than the right of the defendants to mine in the ravine above, and their claim of right to run the water [235] and tailings through the plaintiff’s premises, does not seem to admit of doubt. The evidence seems to be very clear upon that point. The defendants only date their right to mine as far back as 1865, while the deed of the plaintiff under which he entered bears date in 1863. True, it was shown that mining had been carried on by various parties at different times prior to 1865, or even 1863, but the defendants in no way connected themselves with those parties, and cannot therefore date their right back of their own entry. The right of the defendants to mine in the ravine above the plaintiff’s premises must be exercised in such a manner as not to damage the prior right of the plaintiff to inhabit and cultivate his premises. So, if the plaintiff’s dam across the ravine antedates the mining right of the defendants, the latter must pay it the same respect, for it is appurtenant to the plaintiff’s premises. So of the spring, if spring there was; but damages for the destruction of the spring would depend very much upon the question whether there is other water sufficient for domestic purposes equally convenient and pure. Order denying a new trial reversed and new trial granted.