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and denied. The appeal is from the judgment and from the order denying a new trial. There are practically three demands made by plaintiff in his complaint: (1) He asks that the defendant be perpetually enjoined from diverting certain waters; (2) he asks that defendant be restrained from turning the tailings from his placer mines into the creek, and thereby causing them to run into plaintiff's ditch; (3) he asks for damages. The order denying the motion for a new trial may well be considered separately with each of these several demands.

As to the prayer that defendant be restrained from diverting the waters, there is evidence tending to show that the defendant was the first appropriator; that he has never abandoned his right, and that the plaintiff has established no right adverse to the defendant. The jury did find, it is true, that defendant did not use any of said waters during the years of 1878, 1879, 1880, 1882 and 1883. They did, however, find that he used said waters during the year 1881; and the testimony shows that there was not water enough to work mines during certain of the years mentioned. We do not think that those facts establish an abandonment by the de. fendant. The judgment of the court below, denying the first relief demanded, is fully sustained by the evidence.

As to the second demand, there is evidence tending to show that some of the sand, gravel, and tailings do run into the ditch and upon the land of the plaintiff; that this is not due to any cause not a necessary incident to the use of water in placer mining; and also that no damage results therefrom to the plaintiff. We are not to be understood as declaring that the owner of a placer mine may disregard the rights of others owning property adjacent to his. But the public policy of this territory demands that a trifling-a nominal damage shall not be ground sufficient to destroy one of its leading industries. The laws of the United States, from which power the plaintiff obtains his right, granted to defendant the right to use the water for placer mining purposes, and we think we have no power to deprive him of that right by enjoining him from doing that which is a necessary incident to the enjoyment thereof; certainly not at the request of one who is a subsequent purchaser from a com

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mon grantor. We think the court below properly refused a restraining order upon these facts, and for authority we rely upon the case of Atchison v. Peterson, 20 Wall. 507. That was an appeal from the Supreme Court of this territory. The plaintiff asked for an injunction against a subsequent appropriator, so that in that respect the case would present a stronger claim for injunction than does the case under consideration, in which it is a subsequent appropriator who seeks the remedy. The court say: “But whether, upon a petition or a 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.”

As to the question of damages. It appears from the findings that the ditches of the plaintiff have been filled by sand and mud, part of which is due to the placer mining of defendant. The witnesses for plaintiff estimate the damage at sums varying from $200 to $500. They base their estimate upon the whole damage done. The jury, on the other hand, declare that only part of this is caused by the mining operations of defendant, and then declare that no damage was caused thereby. The plaintiff insists that he is entitled at least to nominal damage, and upon that ground also asks for a judgment of reversal. It would seem to be the law that one who establishes a nuisance is entitled to nominal damages at least; and then, in most cases, an injunction follows to prevent future damage of the same nature. But the case of Atchison v. Peterson, already cited, declares that the injunction does not follow as a matter of right in cases like the present, and we can see no reason why this case should be sent to the court below merely to direct a judgment for one cent in favor of the plaintiff; for, as to the other demands, we are of the opinion that the judgment of the court below is correct.

One more alleged error is much relied on by appellant,

who claims that this is an equity case, and that the jury should not have been asked or allowed to return a general verdict, and cites as authority cases from the California reports. The respondent, on the other hand, insists that there is a combination of a common law action with a suit in equity, and that the question of damages was properly made the subject of a general verdict, and cites as authority Basey v. Gallagher, 20 Wall. 680. This might, perhaps, afford a subject for learned discussion, but surely it should not be allowed to disturb a solemn judgment. In what respect was the plaintiff injured by the return of a general verdict? The record shows that the jury did return special findings; that the judge below, sitting as an equity judge, did solemnly accept this formal aid to his conscience, and did approve of the special findings; and the record further shows that upon such acceptance and approval judgment was entered in favor of the defendant.

The judgment and order appealed from are affirmed, with costs.

MCCONNELL, C. J., and DE WOLFE, J., concur.

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1. Abandonment is a question of intention and a general rule of property applied to mining rights. Inez Co. v. Kinney, 46 Fed. 832. A matter of intention and particularly within the province of the jury. Marshall v. Harney Peak Tin Co., 47 N. W. 290.

2. Lessees quit work for several years: Held, that the owners were justified in considering the lease abandoned and reletting to others. Porter v. Noyes, 10 N. W. 77.

3. Cargo of coal sunk in lake is not abandoned. Murphy v. Dunham, 38 Fed. 503.

4. Where there is no question of abandonment in the case it is not error to refuse an instruction upon the question of abandonment. Coleman v. Davis, 21 Pac. 1018.

5. Insufficient proof that party had elected to abandon interest in lease. Meagher v. Reed, 24 Pac. 681.

THE MARSHALL SILVER MINING CO. ET AL., Appel

lants, v. JEREMIAH KIRTLEY ET AL., Appellees.

(12 Colorado, 410; 21 Pac. 492. Supreme Court, 1888.)

а

The allegation in the complaint that the action is in support of an

adverse claim determines the character of the action as one to test plaintiff's right to recover as the holder of a valid location of a mining claim, and to test the defendant's right to go to patent. Allegations in the answer, therefore, traversing the allegation that any adverse claim was filed on behalf of a certain mining claim, make a

material issue. Suit by vendee of adverse claimant. An adverse claimant, who has

brought an action in support of his adverse claim, may be permitted by the court to bring in titles based on other adverse claims, by a supplemental complaint, if such adverses had been duly filed and suit brought within the time limited for bringing an action in support thereof, though he may have acquired the right to them by purchase

after the commencement of the action. 1 Suit not brought within thirty days. The objection that the evidence

shows that plaintiff did not bring the action in support of his adverse claim within thirty days after filing such claim, can not be raised for the first time in the Supreme Court.

Commissioners' decision. Appeal from District Court, Gilpin County.

This action was brought by appellees, who were plaintiffs below, against the Marshall Silver Mining Company, to recover the possession of the Kirtley lode mining claim, an undivided one-half of the Junction lode mining claim, and an undivided three-fourths of the Trade Dollar lode mining claim, and it was a verred in the complaint that the action was brought in support of an adverse claim filed against said defendant's applications for a patent for the Wash Lewis and Henry, lode mining claims. The defendant, answering the complaint, denied plaintiffs' title to said mining claims, admitted that the action was brought in support of an adverse claim as to so much of the Kirtley claim as is covered by the Wash Lewis claim, but denied that it was brought in support of

1

Mattingly v. Levisohn, 19 Pac. 310; Steves v. Carson, 16 M. R. 14; Hunt v. Eureka Gulch Co., 14 Colo. 451.

an adverse claim as to the remaining portion of the Kirtley claim, and, as to the Junction and Trade Dollar claims, alleged that plaintiffs failed to bring any adverse claims in support of their title, or pretended title, to said Junction and Trade Dollar mining claims within the sixty days during which defendant's applications for a patent for the Wash Lewis mining claim, and for a patent for the Henry mining claim, were published, and that by such failure plaintiff's were barred from asserting title to either the Junction or Trade Dollar claims, so far as said claims conflicted with or were covered by either the said Wash Lewis or the said Henry claim; alleged that defendant claimed the right to occupy and possess all that part of the Junction and Trade Dollar claims lying within the exterior lines of the Wash Lewis and Henry, by pre-emption, discovery, and location, as parcels of said Wash Lewis and Henry claims, and also by reason of the failure of the plaintiffs to file adverse claims in favor of said Junction and Trade Dollar claims against said Wash Lewis and Henry claims.

Plaintiffs' demurrer to so much of defendant's answer as alleged a failure to adverse the Wash Lewis and Henry claims, based upon the grounds that, if said allegations were true, the facts would be no bar to the action, and that a failure to adverse is no bar to bringing an action to try title to claims for which no entry has been made, was sustained.

By a supplemental complaint the plaintiffs seek to recover possession of the west 1,426 feet of the Steam-Boat lode mining claim. A motion to strike out this supplemental complaint was denied. Defendant's answer to said supplemental complaint puts in issue all the material allegations thereof, and alleges that the land claimed or covered by the said Steam-Boat claim is covered by patents issued to defendant by the United States, for the No. 8, No. 10, and 0. K. lode mining claims, and by applications by defendant for patent for the Wash Lewis and Henry claims, and that no adverse claim was filed on behalf of said Steam-Boat claim against said applications for patent by defendant within the period allowed by law for filing adverse claims, and that defendant is the owner of said patented claims, and is

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