Blair v. Boswell

Mr. Justice Moore, after stating the facts, delivered the opinion of the court. The testimony shows that defendant’s lower dam is about eight feet high from the bed of the creek, and that the fall of water between plaintiff’s and defendant’s dams is 5.3 inches to the rod, so that, if it be assumed that the tailings from plaintiff’s mine are arrested by defendant’s dams, and settle horizontally in the bed of the creek, the surface of the precipitation would extend back from the line of obstruction only 18.11 rods, when, the reservoir becoming filled, the sedimentary deposit would flow over the top of the dam. The defendant’s ditch by which he diverts the water to his mine taps the creek at a point below a low-brush dam and above his said lower dam, and, if the debris fills the creek to the top of the latter, the ditch will be rendered useless, to avoid which the lower dam is provided with a gate, which, being opened, will permit the tailings to be carried down the creek. The distance from defendant’s dams to the lower line of 170 plaintiff’s placer claims is about one-half mile ; and when the fall of the creek is considered, showing that a dam 70.66 feet in height would be required to back the water to plaintiff’s lower line, the probability of his sustaining injury by the maintenance of a dam eight feet high is certainly very remote. It is contended that plaintiff and his predecessors in interest having deposited tailings in Mormon Basin Creek, and used the water thereof, for more than twenty years, to carry off the debris, a right was thereby acquired to continue such use, and, this being so, the court erred in denying the relief demanded. A conflict of judicial utterance exists respecting the right of a prior appropriator to use the water of a nonnavigable stream to carry off tailings. Thus, in California it would seem that such right is recognized: Stiles v. Laird, 5 Cal. 120 (63 Am. Dec. 110); Irwin v. Phillips, 5 Cal. 140 (63 Am. Dec. 113); Sims v. Smith, 7 Cal. 148 (68 Am. Dec. 233). In Montana, however, it has been held that prior locators of mining ground have no right to allow tailings to run free in a gulch, so as to render valueless the mining claims of subsequent locators below them : Lincoln v. Rodgers, 1 Mont. 217. Such, also, seems to be the rule in Idaho : Ralston v. Plowman, 1 Idaho, 595. Assuming, without deciding, that plaintiff has the right which he claims, a court of equity ought not to grant injunctive relief except when the right has been invaded in a manner which has resulted, or must inevitably result, in injury to the owner of the dominant estate, and, as the testimony shows that this cannot happen to plaintiff from the maintenance of defendant’s dams as now constructed, no error was committed in denying the relief demanded; for, if plaintiff could insist upon the uninterrupted flow of the water in Mormon Basin Creek because sediment from his mines had been carried down the stream by the current, he might 171 with equal propriety enjoin the erection of dams in Willow Creek, and in the Malheur, Snake, and Columbia rivers, into which each stream, respectively, flows, because it is possible that an atom of such sediment may reach the latter'river. The plaintiff having failed to show that he has suffered or would necessarily sustain any injury to his premises from the maintenance of defendant’s dams, the decree is affirmed. Affirmed .