1. On the mineral lands of the public domain in the Pacific
states and territories, the doctrines of the common law,
declaratory of the rights of riparian proprietors respecting the
use of running waters, are inapplicable or applicable only in a
very limited extent to the necessities of miners, and inadequate to
their protection; there prior appropriation gives the better right
to running waters to the extent, in quantity and quality, necessary
for the uses to which the water is applied.
What diminution of quantity, or deterioration in quality, will
constitute an invasion of the rights of the first appropriator will
depend upon the special circumstances of each case, and in
controversies between him and parties subsequently claiming the
water, the question for determination is whether his use and
enjoyment of the water to the extent of the original appropriation
have been impaired by the acts of the other parties.
Page 87 U. S. 508
3. Whether, upon a petition or bill asserting that the prior
rights of the first appropriator have been invaded, a court of
equity will interfere to restrain the acts of the party complained
of will depend upon the character and extent of the injury alleged,
whether it be irremediable in its nature, whether an action at law
would afford adequate remedy, whether the parties are able to
respond for the damages resulting from the injury, and other
considerations which ordinarily govern a court of equity in the
exercise of its preventive process of injunction.
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
Page 87 U. S. 509
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
Page 87 U. S. 510
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 sand gate 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. JUSTICE FIELD delivered the opinion of the Court.
By the custom which has obtained among miners in the Pacific
states and territories, where mining for the precious metals is had
on the public lands of the United States, the first appropriator of
mines, whether in placers, veins, or lodes, or of waters in the
streams on such lands for mining purposes, is held to have a better
right than others to work the mines or use the waters. The first
appropriator who subjects the property to use, or takes the
necessary steps for
Page 87 U. S. 511
that purpose, is regarded, except as against the government, as
the source of title in all controversies relating to the property.
As respects the use of water for mining purposes, the doctrines of
the common law declaratory of the rights of riparian owners were,
at an early day, after the discovery of gold, found to be
inapplicable or applicable only in a very limited extent to the
necessities of miners, and inadequate to their protection. By the
common law, the riparian owner on a stream not navigable, takes the
land to the center of the stream, and such owner has the right to
the use of the water flowing over the land as an incident to his
estate. And as all such owners on the same stream have an equality
of right to the use of the water, as it naturally flows, in
quality, and without diminution in quantity, except so far as such
diminution may be created by a reasonable use of the water for
certain domestic, agricultural, or manufacturing purposes, there
could not be, according to that law, any such diversion or use of
the water by one owner as would work material detriment to any
other owner below him. Nor could the water by one owner be so
retarded in its flow as to be thrown back to the injury of another
owner above him. "It is wholly immaterial," says Mr. Justice Story
in
Tyler v. Wilkinson, [
Footnote 1] "whether the party be a proprietor above or
below in the course of the river, the right being common to all the
proprietors on the river, no one has a right to diminish the
quantity which will, according to the natural current, flow to the
proprietor below, or to throw it back upon a proprietor above. This
is the necessary result of the perfect equality of right among all
the proprietors of that which is common to all." "Every proprietor
of lands on the banks of a river," says Kent,
"has naturally an equal right to the use of the water which
flows in the stream adjacent to his lands, as it was wont to run
(currere solebat) without diminution or alteration. No
proprietor has a right to use the water to the prejudice of other
proprietors above or below him, unless he has a prior right
Page 87 U. S. 512
to divert it, or a title to some exclusive enjoyment. He has no
property in the water itself, but a simple usufruct while it passes
along.
Aqua currit et debet currere ut currere solebat.
Though he may use the water while it runs over his land as an
incident to the land, he cannot unreasonably detain it or give it
another direction, and he must return it to its ordinary channel
when it leaves his estate. Without the consent of the adjoining
proprietors, he cannot divert or diminish the quantity of the water
which would otherwise descend to the proprietors below, nor throw
the water back upon the proprietors above without a grant or an
uninterrupted enjoyment of twenty years, which is evidence of it.
This is the clear and settled doctrine on the subject, and all the
difficulty which arises consists in the application. [
Footnote 2]"
This equality of right among all the proprietors on the same
stream would have been incompatible with any extended diversion of
the water by one proprietor, and its conveyance for mining purposes
to points from which it could not be restored to the stream. But
the government being the sole proprietor of all the public lands,
whether bordering on streams or otherwise, there was no occasion
for the application of the common law doctrine of riparian
proprietorship with respect to the waters of those streams. The
government, by its silent acquiescence, assented to the general
occupation of the public lands for mining, and, to encourage their
free and unlimited use for that purpose, reserved such lands as
were mineral from sale and the acquisition of title by settlement.
And he who first connects his own labor with property thus situated
and open to general exploration, does, in natural justice, acquire
a better right to its use and enjoyment than others who have not
given such labor. So the miners on the public lands throughout the
Pacific states and territories by their customs, usages, and
regulations everywhere recognized the inherent justice of this
principle; and the principle itself was at an early period
recognized by legislation and enforced by the courts
Page 87 U. S. 513
in those states and territories. In
Irwin v. Phillips,
[
Footnote 3] a case decided by
the Supreme Court of California in January, 1855, this subject was
considered. After stating that a system of rules had been permitted
to grow up with respect to mining on the public lands by the
voluntary action and assent of the population, whose free and
unrestrained occupation of the mineral region had been tacitly
assented to by the federal government, and heartily encouraged by
the expressed legislative policy of the state, the court said:
"If there are, as must be admitted, many things connected with
this system which are crude and undigested, and subject to
fluctuation and dispute, there are still some which a universal
sense of necessity and propriety have so firmly fixed as that they
have come to be looked upon as having the force and effect of res
adjudicata. Among these the most important are the rights of miners
to be protected in their selected localities, and the rights of
those who, by prior appropriation, have taken the waters from their
natural beds, and by costly artificial works have conducted them
for miles over mountains and ravines to supply the necessities of
gold diggers, and without which the most important interests of the
mineral region would remain without development. So fully
recognized have become these rights, that without any specific
legislation conferring or confirming them, they are alluded to and
spoken of in various acts of the legislature in the same manner as
if they were rights which had been vested by the most distinct
expression of the will of the lawmakers."
This doctrine of right by prior appropriation, was recognized by
the legislation of Congress in 1866. The act granting the right of
way to ditch and canal owners over the public lands, and for other
purposes, passed on the 26th of July of that year, in its ninth
section declares
"that whenever, by priority of possession, rights to the use of
water for mining, agricultural, manufacturing, or other purposes,
have vested and accrued, and the same are recognized and
Page 87 U. S. 514
acknowledged by the local customs, laws, and decisions of
courts, the possessors and owners of such vested rights shall be
maintained and protected in the same. [
Footnote 4]"
The right to water by prior appropriation, thus recognized and
established as the law of miners on the mineral lands of the public
domain, is limited in every case, in quantity and quality, by the
uses for which the appropriation is made. A different use of the
water subsequently does not affect the right; that is subject to
the same limitations, whatever the use. The appropriation does not
confer such an absolute right to the body of the water diverted
that the owner can allow it, after its diversion, to run to waste
and prevent others from using it for mining or other legitimate
purposes; nor does it confer such a right that he can insist upon
the flow of the water without deterioration in quality, where such
deterioration does not defeat nor impair the uses to which the
water is applied.
Such was the purport of the ruling of the Supreme Court of
California in
Butte Canal & Ditch Company v. Vaughn,
[
Footnote 5] where it was held
that the first appropriator had only the right to insist that the
water should be subject to his use and enjoyment to the extent of
his original appropriation, and that its quality should not be
impaired so as to defeat the purpose of that appropriation. To this
extent, said the court, his rights go and no farther; and that in
subordination to them subsequent appropriators may use the channel
and waters of the stream, and mingle with its waters other waters,
and divert them as often as they choose; that whilst enjoying his
original rights the first appropriator had no cause of complaint.
In the subsequent case of
Ortman v. Dixon, [
Footnote 6] the same court held to the same
purport, that the measure of the right of the first appropriator of
the water as to extent follows the nature of the appropriation or
the uses for which it is taken.
What diminution of quantity, or deterioration in quality,
Page 87 U. S. 515
will constitute an invasion of the rights of the first
appropriator will depend upon the special circumstances of each
case, considered with reference to the uses to which the water is
applied. A slight deterioration in quality might render the water
unfit for drink or domestic purposes, whilst it would not sensibly
impair its value for mining or irrigation. In all controversies,
therefore, between him and parties subsequently claiming the water,
the question for determination is necessarily whether his use and
enjoyment of the water to the extent of his original appropriation
have been impaired by the acts of the defendant. [
Footnote 7] But whether, upon a petition or
bill asserting that his prior rights have been thus invaded, a
court of equity will interfere to restrain the acts of the party
complained of will depend upon the character and extent of the
injury alleged, whether it be irremediable in its nature, whether
an action at law would afford adequate remedy, whether the parties
are able to respond for the damages resulting from the injury, and
other considerations which ordinarily govern a court of equity in
the exercise of its preventive process of injunction.
If now we apply the principles thus stated to the present case,
the question involved will be of easy solution. It appears from the
evidence that there is at the point where the defendants work their
mining claims only about two hundred inches of water in the creek,
according to miners' measurement, that between that point and the
point where the Helena Ditch taps the creek the distance is about
fifteen miles, and that between those points, the creek is supplied
by several tributary streams of clear water, so that at the point
where the water is diverted its volume amounts to about fifteen
hundred inches. Of this water the Helena Ditch diverts five hundred
inches, and conveys it nearly eighteen miles to the localities
where it is sold. Running water has a tendency to clear itself, and
that result is often produced by a flow of a few miles. But in this
case, the
Page 87 U. S. 516
evidence shows that the water as it enters the Helena Ditch is
muddied and to some extent is affected by sand. At the same time,
there is a great preponderance in the evidence to the effect that
the deterioration in quality from this circumstance is very slight
and does not render the water to any appreciable extent less useful
or salable for mining purposes at the localities to which it is
conveyed, and that no additional labor is required on the ditch on
account of the muddied condition of the water. There is also much
doubt left by the evidence whether the sand carried into the ditch
does not to a very great extent come from the hillsides lying
between it and the mining of the defendants, or lying along the
course of the ditch. A sand gate at the head of the ditch is
necessary whether there is or is not mining on the stream above,
and the accumulation of sand from all sources, from the hillsides
as well as from the mining of the defendants, only requires the
additional labor of one person for a few minutes each day. The
injury thus sustained, and which is only to a limited extent
attributable to the mining of the defendants, if at all, is hardly
appreciable in comparison with the damage which would result to the
defendants from the indefinite suspension of work on their valuable
mining claims. The defendants are also responsible parties,
capable, according to the evidence, of answering for any damages
which their mining produces, if any, to the plaintiffs. Under these
circumstances, we think there was no error in the refusal of the
court below to interfere by injunction to restrain their operations
and in leaving the plaintiffs to their remedy, if any, by an action
at law.
With respect to the water diverted by the Yaw-Yaw Ditch, it is
shown that its deterioration, so far as the deterioration exceeds
that of the water in the Helena Ditch, is caused by sand and
sediment brought by a tributary which enters the creek below the
head of the Helena Ditch.
Decree affirmed.
[
Footnote 1]
4 Mason 379.
[
Footnote 2]
3 Kent's Commentaries 439, side paging.
[
Footnote 3]
5 Cal. 140.
[
Footnote 4]
14 Stat at Large 253.
[
Footnote 5]
11 Cal. 143.
[
Footnote 6]
13 Cal. 33;
see also Lobdell v. Simpson, 2 Nev.
274.
[
Footnote 7]
This is substantially the rule laid down in
Hill v.
Smith, 27 Cal. 483; Yale on Mining Claims and Water Rights
194.
