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CONTAINING RECENT CASES ON THE
LAW OF MINES
OF ALL THE CASES IN THE ENTIRE SERIES, INCLUDING
THIS SUPPLEMENTAL VOLUME.
By R S. MORRISON,
OF THE COLORADO BAR,
CALLAGHAN & COMPANY,
JEFFERSON MCCAULEY, Appellant, v. DAVID
(8 Montana, 389; 21 Pac. Rep. 22.
Supreme Court, 1889.)
Working one out of several years. Defendant, a prior appropriator
of water, made no use of it in the years 1878, '79, '80, '82 or '83, but did use it in the intervening year 1881; and there was evidence that during some of those years there was not water enough to work.
Held, that proof of abandonment was not made out. No injunction against slight damage from tailings. Slight injury to
land, and water rights below, by the fouling incidental to placer min
ing, will not be enjoined. General, corrected by special verdict. The fact that in an equity
case the jury are allowed to return a general verdict is harmless error, where they also return special findings for the same party, which are accepted by the court, and on which judgment is ren
dered. Cause not remanded for nominal damages. A case will not be re
versed and remanded to the lower court to direct a judgment for nominal damages in favor of appellant.
Appeal from District Curt, Soilver Bow County.
Action by Jefferson McCauley against David McKeig. Judgment for defendant, and plaintiff appeals.
KNOWLES & FORBES, for appellant.
W. W. Dixon, for respondent.
* Richards v. Dower, 81 Cal. 44; Kirman v. Hunnewill, 29 Pac. 124.
This is an action setting forth in one complaint two causes of action for two separate nuisances. The first is for the diversion of water from the ditch and land of plaintiff. The second is for running down tailings, sand and dirt, into plaintiff's ditch, and upon his land. The prayer is for damages and for an injunction to abate both nuisances. The defendant denied all the allegations of the plaintiff's complaint, and set up title in himself to the water diverted, and also a right by prescription to run down tailings upon plaintiff's land. The jury returned a general verdict in favor of the defendant and made special findings covering the issues in the case. The following summary of the special findings will present all the facts in issue: The defendant appropriated the water of Soap creek in controversy, for the purposes of placer mining in 1869, and has never abandoned the same. The plaintiff did not appropriate or use said waters until 1872. The defendant has not used said waters since 1872 in any manner differing from his use of the same prior to that date. In 1886 (the year complained of) the defendant did not so use the water as to occasion any loss of water not incidental to his use of the same for placer mining purposes. During that time he did not so use the same as to cause it to carry down any more sand, gravel, sediment or tailings than is usual from the use of water in placer mining. In 1886 plaintiff's ditch was filled up, and
, tailings, sand and gravel were deposited on his land, which was partly caused by the mining operations of the defendant resulting from the ordinary use of water for placer mining. The plaintiff is the owner of the land mentioned in the complaint, and in 1872 he appropriated said waters for irrigating the same. The use of the waters by defendant, as aforesaid, does not cause any injury to the lands or ditches of the plaintiff, or to the water used by him; and the plaintiff has acquired no right to said water adverse to the right of defendant. After the return of the general verdict and special findings, counsel for defendant moved the court to approve and adopt the special findings, and to render judgment for defendant for costs. The court granted the motion, and judgment was ordered for defendant. A motion for a new trial was made