Madigan v. Kougarok Mining Co. , 3 Alaska 63 ( 1906 )

MOORE, District Judge.

It is fully established by the evidence that the plaintiffs have been in possession of the mining claims described in their complaint, namely, placer claims Nos. 11 and 12 on Quartz creek, by virtue of valid original locations thereof, and that their rights to said claims still. continued and subsisted at the date of the trial. It was not disputed at the trial that the natural channel of said Quartz - creek lies within the exterior boundaries of the said claims,. and that during the mining season of each and every year, beginning with 1900 and ending with 1904, the waters of. Quartz creek have flowed over said claims through the natural channel of said stream. It further appears from the evidence-that all the waters of said stream in the month of July, 1900, while they were flowing in the natural channel of said stream over said mining claims, were first diverted and appropriated, by the grantors and predecessors in interest of the plaintiffs,., by means of dams, ditches, and flumes, and were used for mining purposes on said claims in the working and development thereof, and ever since said month of July, 1900, to the-time of bringing the action, the plaintiffs, by themselves, grantors, and predecessors in interest, have continued to so use the waters thus diverted, except when the defendants prevented their use of the waters in the manner aforesaid.

Such rights as the defendant Kougarok Mining Company, may have in the water of Quartz creek were initiated by Jerry Galvin by an appropriation of the waters of said stream made April 28, 1903, followed by a written notice thereof put on record in the office of the commissioner of the Kougarok mining and recording district, Alaska, on the 1st day of May, 1903. When the defendant company began to excavate and; build its ditch, the rights of the plaintiffs in said mining claims and in the water of said creek flowing through said claims were already vested in them.

The evidence before the court is to the effect that the plain.tiffs at all times, except, perhaps, when the waters of Quartz creek are at their flood, need all the water of the stream for ground sluicing and for carrying on their other mining operations. The contention of the defendants that no water was ever diverted by them without the consent of the owners of the mining property is not supported by the evidence. Indeed, there is no evidence that the two plaintiffs ever gave their consent to the defendants’ diverting the waters from the stream. If others professing to be the owners of the claims, or even actual co-owners of the claims with the plaintiffs, consented to the diversion, the plaintiffs would not in any view be stopped from complaining thereof in this action.

The defendants were equally unsuccessful in their attempt to prove that at no time have the claims been operated at a profit. Their right to the use of the water would not be impaired in the least by their inability to work the claims at a profit. They had a clear right to use the water in an effort to prospect or develop their claims. It is not necessary for the plaintiffs to show that their mines would pay to work in order to entitle them to protection in the use of the water which is incident to their claims. They have a right to try to make such mines pay. The defendants have likewise failed to establish that part of their defense setting forth that the plaintiffs have received from the defendants as much water .as they need to work their claims in 1903 and 1904. The evidence is plainly to the contrary of this proposition.

In my opinion all the main allegations of the complaint are established by the preponderance of the testimony, and the affirmative allegations of the defenses. disproved. What, then, are the rights under the law?

By Act Cong. June 6,1900, § 26, tit. 1 (31 Stat. 321, c. 786), entitled “An act making further provision for a civil government for Alaska, and for other purposes,” the laws of the United States relating to mining claims, mineral locations, and rights incident thereto were extended to the territory of Alaska. Carter’s Code, p. 139. This was a re-enactment of a provision of the act of Congress of May 17, 1884 (section 8), whereby the laws of the United States “relating to mining’ claims and the rights incident thereto” were declared to be “in full force and effect in said district from the passage of said act.” By section 7 of the last-named act the general laws of the state of Oregon then in force were extended so far as they were applicable and not in conflict with the laws of the United States. 23 Stat. 25.

Riparian rights as defined in the common law were then in force in the state of Oregon. Shook v. Colohan, 12 Or. 239, 6 Pac. 503. So far as I have information they were still in force in that state in the year 1900. When all the acts essential to a valid location of the claim described in the complaint had been completed, the locator and those in privity of interest with him acquired the right to use so much of the water of Quartz creek as was reasonably necessary for prospecting, mining, and operating the claims. “A placer location ex vi termini imports an appropriation of all waters covered by it in so far as such waters are necessary for working the claim.” Schwab v. Beam (C. C.) 86 Fed. 42. By the common law the riparian owner has the right to have the water flow as it was wont to flow, undiminished except by the reasonable use and consumption thereof by the upper proprietors. Sturr v. Beck, 133 U. S. 551, 10 Sup. Ct. 350, 33 L. Ed. 761.

It is a familiar rule of the common law that no one can divert the water from the premises of the riparian owner without his consent, but must let the water flow in its natural channel across the lands of the riparian owner. The right of the riparian proprietor to the flow of the stream is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it.

The right in each extends to the natural and usual' flow of all the water, unless where the quantity has been diminished as a consequence of the reasonable application of it by other riparian owners for their lawful purpose. Lux v. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 753; Pomeroy on Water Rights,

Riparian rights attach to the ownership of a placer mining claim situated on a natural stream from the date of the location of the claim. Sturr v. Beck, 133 U. S. 544, 10 Sup. Ct. 350, 33 L. Ed. 761; Schwab v. Beam (C. C.) 86 Fed. 41; Cruse v. McCauley (C. C.) 96 Fed. 369; Stark v. Starr, 6 Wall, 402, 18 L. Ed. 925. These are all the rights of a riparian owner now calling for mention.

It was virtually conceded that such rights in the water of Quartz creek as the defendants may have gained were first acquired by their predecessor in title after the location of the two mining claims. The precise date from which they trace claim of right to the use of the waters of said creek is April 28, 1903. At that time the mining claims had been segregated from the public domain, and the land, with the riparian rights in the waters of Quartz creek annexed thereto, had become vested in the plaintiffs. The rights of the de-r fendants to the use of the water of the stream is therefore to be enjoyed, if at all, in subordination to the rights of the plaintiffs to the flow and use of the stream. In other words, the defendants may not use the waters of the stream until the plaintiffs have had the first use of them to the extent of the full natural flow of them, if they shall reasonably need the same for a beneficial use. The evidence does not make clear the number of miners’ inches of water which the plaintiffs may take from the stream under their location or subsequent actual appropriation. There is furnished to the court no data by which the court could apportion to each of the parties plaintiff .and defendant a several share of the water. The opinion of the court is, therefore, that the plaintiffs should have a decree that they are entitled to have all the waters of Quartz creek flow in the natural channel thereof over and across and through the said placer mining claims, but that if at any time hereafter the said plaintiffs should not apply to their reasonable and beneficial uses all of the waters of said creek, the surplus above the amount used by them may be diverted into the ditch of said defendants, to be used by them in prospecting, developing, and operating the mining claims of said defendants and others along the line of their ditch. This right of diversion is, of course, modified and limited by the prior and paramount rights of other riparian owners or locators of land through or along which said stream flows. But I shall make no order in reference to other riparian owners; they not being before the court in this action.

The evidence shows that the defendants have committed a trespass upon the property of the plaintiffs, but does not ascertain the precise amount of damages which'have resulted from the trespass. It does establish that the plaintiffs’ riparian rights have been violated. This cannot be done without liability to repair the injury. The law presumes damage as the facts appear in this case, and nominal damages to the amount of $1 will therefore be awarded to the plaintiffs as part of the court’s judgment.

A writ of injunction may issue, after findings of fact and conclusions of law in accordance with this opinion have been submitted to and adopted by the court.