Atchison v. Peterson

APPEAL from the Supreme Court of the Territory of Montana.

Atchison and others filed a bill in the District Court of the Territory just named, for an injunction to restrain Peterson and others from carrying on certain mining operations on a creek in the county of Clark and Lewis, in the said Territory, known as the Ten-Mile Creek. The bill alleged that the water, diverted by the complainants from the stream for mining purposes, was deteriorated in quality and value. It appeared from the evidence that the complainants were the owners of two ditches or canals, known respectively as the Helena water-ditch and the Yaw-Yaw ditch, by which the creek mentioned was tapped and the water diverted and conveyed a distance of about eighteen miles to certain mining districts, known as the Last Chance and Dry Gulches, and there sold to miners. The parties through whom the complainants derived their interests, asserted a claim to the waters of the creek in November, 1864, and during that year commenced the construction of the ditches and continued work thereon until August, 1866. The work was then suspended, for want of means by the parties to continue it, until the following year, when it was resumed, and in 1867 the ditches were completed and put into operation. Their cost was $117,000.

Whilst this work was progressing, and in the summer of 1865, there was some mining on the Ten-Mile Creek about fifteen miles above the point where the ditches of the plaintiffs tap the stream, but there was no continued mining at that place until 1867. From that period until the present time the defendants had been working and were still working mining ground situated at that point on the creek. In that work they in some places washed down the earth from the side of the hills bordering on the stream; in other places they excavated the earth and threw such portions as were supposed to contain gold into sluices upon which the water was turned. The earth from the washing on the hillsides and from the sluices, designated in the vocabulary of miners as 'tailings,' and the water mixed with it was carried into the creek and affected its whole current, which at that point has a volume of only about two hundred inches, according to the measurement of miners, filling the water with mud, sand, and sediment, and impairing its value at that point for further mining.

The bill alleged that the 'tailings' thus thrown into the current were carried down the stream into the ditches of the complainants, thereby obstructing the flow of the water through the ditches, and injuring it in quality and value; and they insisted that as prior appropriators of the waters of the stream, they were entitled to its use without such deterioration; and for the protection of their rights, they asked an injunction to restrain the defendants from the further commission of the alleged grievances.

The evidence showed that the volume of water in the creek, which at the point where the defendants worked their mining claims was, as above said, only about two hundred inches, according to the measurement of miners, was increased at the point where the ditches of the complainants tapped the creek, by intervening tributary streams of clear water, to about fifteen hundred inches. Of this water the Helena ditch diverted about five hundred inches, and took it about eighteen miles, to the places where it was sold to miners. The water as it entered the ditch was in some degree muddied and affected with sand, and the evidence was conflicting as to the influence of the mud and sand upon the value of the water. The great preponderance of the evidence, however, was to the effect that the injury in quality from this cause was so slight as not, in any material extent, to impair the value of the water for mining, nor render it less salable to the miners at the places where it was carried. A majority of the witnesses testified that it was first-class water for mining purposes, and some of them that it was good water even for domestic uses.

Persons who had cleaned out the Helena ditch and examined it, testified that there were no tailings or sediment of consequence in it, and that the most that there was ran into the ditch from the hillsides along the ditch and stream. A preponderance of the evidence also showed that no extra labor was required on the ditch on account of the muddy character of the water, or at most only the additional labor of one person for a few minutes each day, and that a sandgate was necessary at the head of the ditch whether or not there was mining above on the stream.

With respect to the water diverted by the Yaw-Yaw ditch, it was shown that its deterioration, so far as the deterioration exceeded that of the water in the Helena ditch, was caused by sand and sediment brought by a tributary which entered the creek below the head of the Helena ditch.

The mining claims of the defendants were shown to be worth from $15,000 to $20,000 each, and it appeared that the defendants were responsible and capable of answering for any damages the complainants might sustain.

The District Court denied the injunction, and the Supreme Court of the Territory affirmed its decree. From the latter court an appeal was taken to this court.

Mr. Robert Leech, for the appellants; Mr. G. G. Symes, contra.

Mr. Justice FIELD delivered the opinion of the court.