Miocene Ditch Co. v. Jacobson , 2 Alaska 567 ( 1905 )

MOORE, District Judge.

The question presented to us is: Is the plaintiff entitled to an injunction which will interfere with the reasonable and convenient working of a placer mining claim legally in the possession of its owner, which has been legally segregated from the public domain prior to an attempt by the plaintiff to appropriate a right of way across the claim?

It is a settled fact now that the defendants’ rights to the enjoyment of the ground included in the claim were initiated early in the year 1902, while the plaintiff’s rights to the enjoyment of such land, or any part thereof, if any it have, were instituted in 1903.

The rule “first in time, first in right” clearly applies to the above-stated condition of facts.

In Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240, the highest court in the land declared (against the contention of a ditch owner) that the acquisition of a prior water right — that is, a right to appropriate and divert the waters of a stream and carry them over the public land- — did not confer the right of way absolutely over the public lands; on the contrary, it was held that such water rights, being acquired by priority of appropriation, must yield to the rights of others in the public lands acquired in like manner by acts of appropriation prior to the inception of the water right. Justice Field announced the opinion of the Supreme Court in Jennison v. Kirk, and reviews and construes the act of Congress of July 26, 1866, c. 262, 14 Stat. 251, as it was originally adopted, and declares that the re-enactment of said act in section 2339 of the Revised Statutes [U. S. Comp. St. 1901, p. 1437] contains no changes of the original act “affecting its substance and meaning.” The views of the court thus expressed, he adds, are in harmony with the construction of the same section by the Land Department, and accords with the acts of Congress of July 9, 1870 (chapter 235, 16 Stat. 217), and May 10, 1872 (chapter 152, 17 Stat. 94), amendatory of the act of July 26, 1866 (section 9, c. 262, 14 Stat. 253).

So, also, in the case of Titcomb v. Kirk, 51 Cal. 288, 5 Morr. Min. R. 288, the Supreme Court of California announces its conclusion that “there is nothing in the ninth section of the act of 1866, aforesaid, which requires us to hold that the defendant’s right to possess and enjoy his mining claim must be subordinated to the right of plaintiff to construct his ditch.” The facts of that case to which the doctrine here announced was applied disclosed a conflict between a ditch owner and a mining claim owner who washed away the ditch of a subsequent appropriator of a ditch water right.

The Supreme Court of Montana in Noteware v. Sterns, 1 Mont. 311, decided that the Congress in enacting section 9 of the act of Congress of July 26, 1866 (chapter 262, 14 Stat. 253), did not enact that .one person may go at his pleasure on the mining ground of another without the. latter’s consent,. and construct through or over the same a ditch or canal which shall greatly damage or almost destroy the vested rights of the owner, without showing a necessity therefor, and paying or securing the damages to result therefrom.

The facts in that case were that ditch owners brought an action against the proprietor of mining land for damages to them resulting from the act of the defendant in filling up a ditch constructed over his (the mining owner’s) land. The damages were denied to the plaintiff by the lower court, and so was the injunction to restrain the defendant from interfering with plaintiff’s constructing their ditch through or over the defendant’s mining ground. The Supreme Court affirmed the lower court’s decision. . The import of this decision is that the ditch owners were trespassers in going upon the mining land of the defendant without the defendant’s consent.

These decisions are authoritative declarations of the mining law of the United States, as well for the District of Alaska as for the states of California and Montana, in respect to the relative rights of ditch owners and mining claim owners upon the public domain. The rights of ditch owners throughout all the mineral bearing territory of the United States have been declared by Congress to rest on the local laws and customs of miners and judicial decisions.

By the universal law of the Pacific coast states and territories as declared by their courts, the right to use' the waters flowing over the public lands of the United States, and to transport them across the public domain to other parts of the public domain, in preference to a like right in others, depends upon priority of appropriation. Priority of appropriation gives priority of right in such cases. The origin of all rights possible to be acquired in the waters must be traced to the first act of appropriation by the water claimant. If -these rights spring into existence after rights have become vested in others, the water rights are subordinated to the rights of the others already vested. Such must be the law of Alaska if the resources of the country are to be developed and the country advanced in prosperity.

In the case under consideration I am of opinion that, in accordance with the laws of Congress and the judicial expositions of the same,- and in accordance with the customs of the mining community now extended to include Alaska, the defendants were within their rights in washing away the plaintiff's ditch in the usual, ordinary, and proper course of their mining operations, and the injunction pendente lite to restrain the defendants from interference with its ditch must be denied.