McFarland v. Alaska Perseverance Mining Co.

3 Alaska 308

• Court: District Court, D. Alaska
• Decided: June 3, 1907
• Docket: No. 510A
• Status: Published

Opinion

WICKERSHAM, District Judge.

Plaintiffs pray for a decree enjoining defendant from diverting, above their intake, the waters of a nonnavigable stream flowing on the public domain, and thus destroying their alleged prior and better right to the use thereof in mining. The defendant answers, asserting a prior and better right by a diversion and application to a beneficial use in mining long before that claimed by the plaintiffs. The question at issue is: Have the plaintiffs, or has the defendant, the better right to the use of the waters of Purvey creek by prior diversion for mining?

1. The act of May 17, 1884, being an act entitled “An act providing a civil government for Alaska” (23 Stat. 24), provided for the organization of civil government in yjVlaska, the extension thereto of the laws of Oregon, and in seption 8 enacted :

“And the laws of the United States relating to mining [claims, and the rights incident thereto, shall, from and after the pas¶age of this act, he in full force and effect in said district, under the administration thereof herein provided for subject to such regulations as may be made by the Secretary of the Interior, approved by the^ president.”

Section 2319, Rev. St. U. S. 1878 (U. S. Comp. S|t. 1901, p. 1424), was thereby extended to Alaska. It provides that all valuable mineral deposits on lands belonging to the United States are open to exploration, occupation, and purchase by ■citizens of the United States— ,

“under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so'far as the •same are applicable and not inconsistent with the laws of (he United States.”

The sixteenth section of the act of June 6, 1900 (31 St'at. 328, c. 786), supplementing section 2324, Rev. St. 18^8 (U. S. Comp. St. 1901, p. 1426), provides that: i

“Miners in any organized mining district may make rulep and regulations governing the recording of notices of location of mining ■claims, water rights, flumes, ditches, mill sites, and affidavit^ of labor, not in conflict with this act or the general laws of the United States.”

All the rights of both parties in this case were (acquired .subsequent to the passage of the act of May 17, 188^4, and it follows that so far as this case is concerned no miners’ rule •or regulation adopted by the miners in the Harris mining district in 1880, or at any other time, in conflict with the general laws of the United States, could have any legal force ,or effect after the approval of the act of May 17, 1884. A careful consideration of the evidence and the law relating to the! miners’ rules of the Harris mining district, other than those! relating to water rights, so. adopted in 1880 and contained in ,the first series of ten articles in Plaintiffs’ Exhibit No. 16, persuades me that they fell into utter disuse before the rights of either party hereto vested, were inapplicable and inconsistent with the general laws of the United States, and are therefore of no effect in the determination of the issues in this case.

2. The plaintiffs claim the right to the exclusive use of the whole of the waters naturally flowing in Purvey creek upon two grounds: First, as the riparian proprietor'thereof, by virtue of their location and ownership of the B. C. placer claim, through the uncontested portion of which the creek runs in a natural channel; and, second, by virtue of a prior appropriation thereof under the United States water law for mining purposes. Upon the undisputed evidence in support thereof the uncontested portion of plaintiffs’ location of the B. C. placer claim, over which the waters of Purvey creek naturally flow in its channel, constitutes a valid placer location under the mining- laws of the United States. This location was made on June 19, 1905, and plaintiffs’ claim of riparian rights dates from that time.

Within the territory occupied by the public lands, where the opposite banks of any stream not navigable belong to different persons, the stream and the bed thereof shall become common property. Section 2476, Rev. St. U. S. 1878. Otherwise there is no national law of riparian rights. These are fixed, measured, and governed by the local law. Packer v. Bird, 137 U. S. 661, 11 Sup. Ct. 210, 34 L. Ed. 819; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331; Waters and Water Rights, Farnham, vol. 1, p. 50.

No local statute has been cited which creates or recognizes riparian rights upon nonnavigable streams on the public domain in Alaska; but it is asserted that the right is one derived from the common law and the statutory adoption of the common law in Alaska is noted. Section 218 of the Penal Code of Alaska, approved March 3, 1899, adopted the common law in the following terms: I

“Sec. 218. The common law of England as adopted and understood in the United States shall he in force in said district, except as modified by this act.” i

Section 367 of the Civil Code, approved June 6!, 1900, provided as follows:

“Sec. 367. So much of the common law as is applicable and not inconsistent with the Constitution of the United States or with any law passed or to be passed by the Congress is adopted and declared to he law within the district of Alaska.”

Under these statutes one of tire judges who formerly presided in this division, in the case of Ketchikan Water Co. v. Citizens’ Water Co., 2 Alaska, 120, held that ithe United States water law was not extended to nor in force in Alaska, and that private titles to water in running streams on the public domain in this territory were to be adjudged upbn the common-law rule of riparian rights: ¡

“It may be said, and it is probably true, that section 2339 of the Revised Statutes of the United States (1878), concerning the vested rights to the use of water for mining, right of way foil canals, etc., passed July 26, 1866, has not been put in force and is not in force in Alaska. This is not a part of the mining laws of the United States, but is an independent statute. * * *■ Possibly the Rights in water, therefore, and the use of the same, is restricted to what is known in the common law as ‘riparian rights.’ These depend upon the ownership of the land which is contiguous to and borders upon the water, and they do not attach to any lands, however near, whi¿h do not extend to the water. It is said ‘that the rights of a riparian proprietor, so far as they relate to any natural stream, exist jura naturae, because his land has by nature the advantage of being washed by the stream.’ The right of the riparian proprietor is undoubtedly to have the flow of the stream across his premises in its natural state, t!he water being undiminished for any purpose.” Ketchikan Co. v. Citizens’ Co., 2 Alaska, 120.

It is important to the mining interests of Alaska to know whether that is a correct statement of the water law for this territory. If the law of prior appropriation is not in force here, and the narrow rule of riparian ownership is the controlling and only law oii that subject in Alaska, the defendant has no right to the waters of Lurvey creek, and the injunction should be granted.

3. But it is clearly an error to say that section 2339, Rev. St. U. S. 1878, is not one of the “laws of the United States relating to mining claims, and the rights incident thereto,” and was, therefore, not extended to Alaska by the eighth section of the act of May 17, 1884. It was originally enacted as section 9 of the lode and water law of July 26, 1866 (Act July 26, 1866, c. 262, 14 Stat. 251). The title of that act was “An act to grant the right of way to ditch and canal owners through the public lands, and for other purposes,” and Lindley says of it:

“The title gives no clue to the scope of the act. As a matter of fact, the title belonged to another act which had passed the House, and for which the mining act was substituted in the Senate, without any attempt to change the title, and in this form passed both houses. It was the first general law passed under which title might be acquired to any of the public mineral lands within what are known as the precious metal bearing states and territories. Section 53 (2d Ed.). Lindley on Mines.

And the Supreme Court of the United States, in Del Monte M. Co. v. Last Chance M. Co., 171 U. S. 55, 61, 62, 18 Sup. Ct. 895, 43 L. Ed. 72, says of this act:

“The statute of July 26, 1866 (14 Stat. 251, c. 262), was the first general statute providing for the conveyance of mines or minerals. * * * The act of 1866 was, however, as we have said, the first general legislation in respect to the disposal of mines.”

The act of July 26, 1866, was amended by the act of July 9, 1870, by the addition of sections 12, 13, 14, 15, 16, and 17 thereto. This amendatory act is known as the ‘[‘Placer Law of July 9, 1870.” Section 17 of this amendatory ^ct provided:

“That none of the rights conferred by sections 5, 8, and 9 of the act of which this is amendatory shall be abrogated by this act; and the same are hereby extended to all public lands affected by this act.” 16 Stat. p. 217, c. 235. . !

Section 9 being thus extended to all public landá affected by the United States placer laws, it must be held that, without further legislation, it was extended to Alaska with the placer law of 1870. '

The general mining act of May 10, 1872, was entitled “An act to promote the development of the mining resources of the United States.” 17 Stat. p. 91, c. 152. lit contained amendments to both preceding acts, and new legi|lation upon the general subject of mining. Section 9 thereof repealed sections 1, 2, 3, 4, and 6 of the act of 1866, and m'ade amendments to that act. Section 10 provided that the acjt of July 9, 1870, “shall be and remain in lull force, except as to the proceedings to obtain patent,” etc., thus affirming th'e extension ■of the water law with the placer laws to Alaska, j

Upon the congressional codification of the statutes of the United States in 1878, section '9 of the act of 1866 became section 2339 in chapter 6, tit. 32, of the United Stages Revised Statutes of 1878. Now title 32 is headed “The Public Lands,” and chapter 6 is headed “Mineral Lands and ^lining Resources.” The marginal note to section 2339 readp:

“VestecL rights to use of water for mining, etc.; right of way for canals.” |

The lode and water law of July 26, 1866, including section 9 thereof, now section 2339, Rev. St. U. S. 187‡, has been classified as and considered by the courts and law writers to be one of the mineral laws of the United States ever since its enactment. Section 2339 was so classified by title^, headings, and marginal notes in Rev. St. U. S. 1878.

Courts may consider the whole of a statute, or a series of amending statutes, the titles of the several acts, and their general scope and purpose, a legislative classification thereof in a revised edition, and the titles, headings, and marginal notes in such legislative revision, in determining the intention of the Legislature in a subsequent statute adopting parts or the whole of such former statutes. Holy Trinity Church v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226; Knowlton v. Moore, 178 U. S. 65, 20 Sup. Ct. 747, 44 L. Ed. 969; Mackey v. Miller, 126 Fed. 161, 62 C. C. A. 139. Upon such consideration it is my judgment that section 2339 was one of “the laws of the United States relating to mining claims, and the rights incident thereto,” extended to Alaska by the eighth section of the act of May 17, 1884. Not only is section 2339 found in the body of the mining acts passed by Congress, and classified therewith by statute, the courts and law writers, but, next to the right to mine on the public domain, it grants to miners the most valuable incident thereto — the right to use the public waters in mining. In its very essence' it is one of the mineral laws of the United States, without which mining could not be made profitable.

The provisions of chapter 1 of the act of June 6, 1900 (31-Stat. 321), greatly strengthen that conclusion. That chapter provides for the reorganization of the territorial government of Alaska. Section 26 re-enacts that:

“The laws of the United States relating to mining claims, mineral locations, and rights incident thereto are hereby extended to the district of Alaska.”

Section 13 provides that the district judges shall divide their respective districts into recording precincts, and appoint commissioners therein, who shall be ex officio recorders. Section 15 provides that:

“The respective recorders shall, upon the payment of the fees for the same prescribed by the Attorney General, record separately, in. large and well-bound, separate books, in fair hand: * * * Seventh. Notices and declarations of water rights.” ■ !

Section 16, in its first proviso, enacts that:

“Miners in any organized mining district may make ijules and regulations governing the recording of notices of location of mining claims, water rights, flumes, and ditches, mill sites, an} affidavits of labor, not in conflict with this act or the general laws of the United States.” !

In compliance with these provisions the clerks bf the court have provided recorders with separate books foy recording “notices and declarations of water rights,” and the same have been generally so recorded, and the fees therefor paid.

Prior to the passage of the act of 1884- extending the mineral •laws to Alaska, the miners of the Harris mining district -adopted rules governing the appropriation of th4 waters on the public lands for mining purposes, and ever since that act the miners throughout the various mining camps in Alaska have acted upon the accepted understanding that ¿ection 2339 was extended to and is in force in Alaska. Notices and declarations of water rights have been posted and recorded, the waters of public streams diverted and used for ’mining and other beneficial uses, and a large and rapidly growing vyealth in mining has been created by the miners of the territory upon ,the faith of their right to appropriate the water of flowing streams for such purposes. The use of such public waters is one of the principal rights incident to mining, ancjl, even if it be thought that section 2339 is not one of the laws “relating to mining claims,” it undoubtedly establishes the principal .“right incident thereto,” and for that reason, also, was extended to Alaska by the eighth section of the act of May 17, 1884. Alaska is, and since the approval of the act [of Congress of May 17, 1884, entitled “An act providing a cpil government for Alaska” (23 Stat. 24), has been, one of the organized .. territories of the United States. Coquitlam v. U. S., 163 U. , 16 Sup. Ct. 1117, 41 L. Ed. 184; Binns v. U. S., 194 U. S. 486, 24 Sup. Ct. 816, 48 L. Ed. 1087; Rassmussen v. U. S., 197 U. S. 516, 25 Sup. Ct. 514, 49 L. Ed. 862. Section 1891, Rev. St. U. S. 1878, provides:

“Sec. 1891. The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized territories and in every territory hereafter organized as elsewhere within the United States.”

Therefore, in 1884, when Alaska was organized as a territory, “all laws of the United States which are not locally inapplicable” were extended to Alaska by force of section 1891, and this extended the law in question — section 2339, or the water law of the United States. It was not locally inapplicable, but was applicable to the conditions in Alaska, and necessary to work its mineral deposits.

Not only Congress and the miners of Alaska, but the courts thereof, have for many years acted upon the construction that Congress had extended section 2339 to Alaska. Noland v. Coon, 1 Alaska, 36; Revenue Min. Co. v. Balderston, 2 Alaska, 363; Miocene Ditch Co. v. Jacobson, 2 Alaska, 567; Miocene Ditch Co. v. Moore, Judge, 150 Fed. 483, 80 C. C. A. 301. Upon all these considerations it is my judgment that section 2339, Rev. St. U. S. 1878, was extended to Alaska by section 1891, Rev. St. U. S. 1878, and the eig'hth section of the act of May 17, 1884.

4. Plaintiffs’ first claim to the waters of Purvey creek is based upon their alleged riparian ownership in the waters of the creek as they naturally flow across their placer claim. That right depends upon the common law for expression. The unquestioned rule of the common law was that every riparian owner was entitled to the continued natural flow of the stream. United States v. Rio Grande Irrigation Co., 174 U. S. 690, 702, 19 Sup. Ct. 770, 43 L. Ed. 1136. Plaintiffs, therefore, claim that immediately upon the location of their valid placer mining claim, through which the stream ran, they became entitled to the continued natural flow thereof without! diminution or change, and without any act of appropriation or ¡use on their part. Their contention is that the admitted fact that they had located a valid placer mine across which the stream naturally flowed prevented any one from appropriating (the waters above them for mining, though plaintiffs had not appropriated them for any beneficial purpose. They put the question squarely: Shall riparian right, or appropriation fdr beneficial use, prevail in Alaska ? I

Alaska is one of the precious metal producing territories of the Pacific Coast. Its greatest natural wealth, present and future, lies in its mines, and there can be no sudcessful development of that wealth without the right to appropriate and use the waters of its running streams for that purpose. The placers of Circle, Forty Mile, Fairbanks, Koyukuk, and Nome, the quartz mines of Treadwell, Silver Bow basin, and Chichagof?, the copper mines of Ketchikan, Prince William Sound, the Chitina, and the Nabesna, and the coal fields of Katalla, Matanuska, and the Nenana have called thousands' of hardy prospectors and miners into the Alaskan mountains. For 30 years they have prospected and located mines, and located, diverted, and used the waters of the public streams in extracting that wealth — for mining, manufacturing, and for fisheries. These are matters of which this court will take judicial notice. Isaacs v. Barber, 10 Wash. 124, 38 Pac. 871, 30 L. R. A. 665, 45 Am. St. Rep. 772. Without filching from their 'neighbors, they have annually added many millions of wealth !to the nation’s purse, and not until this moment has the phantom of the common-law right of riparian ownership in those streams appeared to stay their progress. *

Southeastern Alaska is a mountainous region, j but little adapted to agriculture or stock raising. Next to mining, its greatest natural resource is its fisheries. These require the use of its streams for the artificial and natural propagation of fish, and the full recognition and application of the riparian right would destroy that public and valuable use. It would also conflict with the right to use such waters for manufacturing and irrigation purposes, both of which uses are now more than ever before recognized in the West as necessary and beneficial rights of the public. It would, in effect, substitute for these great and necessary public uses the private and technical right of the riparian claimant to have the waters run without necessity or use. Without the common law of riparian ownership compels it, it is not the law in this territory that by the mere location of a placer mining claim across the waters of a nonnavigable stream on public lands, the upper waters thereof are thereafter forever required to flow in their natural channel across such claim, and cannot be diverted by others for beneficial use in mining, fisheries, manufacturing, or irrigation.

There is no local statute creating riparian rights upon non-navigable streams on the public lands in Alaska. It is a common-law right, if it exists. Section 218 of the Penal Code adopted “the common law of England as adopted and understood in the United States,” and section 367 of the Civil Code provides that:

“So much of the common law as is applicable and not inconsistent with the Constitution of the United States or with any law passed or to be passed by Congress is adopted and declared to be law within the district of Alaska.”

Upon a prior careful consideration of the question this court has held:

“The common law of England then, is in force in Alaska only so-far as its principles are applicable and are suited to the conditions of the country and the necessities of the people, and not repugnant to our laws or to the established customs and usages of the people-of the territory.” In re Burkell, 2 Alaska, 109, 119.

And this was the rule under the Oregon laws in force in Alaska prior to the adoption of the Alaska Civil Code by the act of June 6, 1900. Carson v. Gentner, 33 Or. 512, 515, 52 Pac. 506, 43 L. R. A. 130; and, generally, Luhrs v. Hancock, 181 U. S. 567, 21 Sup. Ct. 726, 45 L. Ed. 1005.

The riparian right claimed by the plaintiffs in this case is inapplicable and unsuited to the conditions in this territory. It is repugnant to and in direct conflict with the righj: of appropriation recognized by section 2339 as the common law of the mines. That statute was extended to Alaska in 1884. Defendant’s right of prior appropriation is claimed to have vested in 1897, while the first act extending the common law to Alaska was approved March 3, 1899. Prior to all these dates the miners in the Harris mining district had established customs, rules, and regulations under which they diverted the waters on the public lands for mining purposes, and such customs, rules, and regulations continued and have been respected from that early time to the present. The riparian rig¡ht claimed by the plaintiffs is in direct conflict with such customs, rules, regulations, and usages, and destructive thereof.

The present conditions in Alaska are similar to those in the early mining days of California, and the language of Mr. Justice Field in Jennison v. Kirk, in construing section 2339, is peculiarly applicable to the facts in this case: ¡

“But the mines could not be worked without water. Without water the gold Would remain forever buried in the earth or rock. To carry water to mining localities, when they were not on the banks of a stream or lake, became, therefore, an important and necessary business in carrying on mining. Here, also, the first appropriator of water to be conveyed to such location for mining or other beneficial purposes was recognized as having, to the extent of actual use, the better right. The doctrines of the common law respecting the rights of riparian owners were not considered as applicable, or only in a very limited degree, to the condition of miners in the mountains.” Jennison v. Kirk, 98 U. S. 453, 458, 25 L. Ed. 240. ,

And in Atchison v. Peterson the Supreme Court said:

“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 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. * * * 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 proprietorship with respect to the waters of those streams.” Atchison v. Peterson, 87 U. S. 507, 510, 512, 22 L. Ed. 414.

The later decisions of the Supreme Court of the United States affirm the principles announced in the two last-cited cases. United States v. Rio Grande Irrigation Co., 174 U. S. 690, 704, 19 Sup. Ct. 770, 43 L. Ed. 1136; Gutierres v. Albuquerque Rand Co., 188 U. S. 545, 553, 23 Sup. Ct. 338, 47 L. Ed. 588.

In those Pacific states and territories where the conditions of mining on the public lands most nearly resemble those in Alaska, the riparian right claimed by plaintiffs is denied. Boquillas Land Co. v. Curtis (Ariz.) 89 Pac. 504; Stowell v. Johnson, 7 Utah, 215, 26 Pac. 290; Crippen v. White, 28 Colo. 298, 64 Pac. 184; Coffin v. Left Hand Ditch Co., 6 Colo. 446; Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 Pac. 317, 4 L. R. A. 60, 19 Am. St. Rep. 364; Willey v. Decker, 11 Wyo. 496, 73 Pac. 211, 100 Am. St. Rep. 939; Drake v. Earhart, 2 Idaho (Hasb.) 750, 23 Pac. 541; Montana: Atchison v. Peterson, 87 , 22 L. Ed. 414; Basey v. Gallagher, 87 U. S. (20 Wall.) 670, 681, 22 L. Ed. 452; New Mexico: United States v. Rio Grande Irrig. Co., 9 N. M. 292, 51 Pac. 674, 677; Albuquerque Land Co. v. Gutierrez, 10 N. M. 177, 61 Pac. 357. The principal mining and arid states have abolished the law of riparian right and embodied the recognition of the public right to the use of waters in the streams bjy prior appropriation by constitutional enactment. The staj.es having such constitutional provisions are Colorado, Wyoming-, Idaho, Montana, and North Dakota. 2 Farnham,-Waters ánd Water Rights, § 652a.

The mere location of a placer mine crossed by a honnavigable stream, in Alaska, does not vest the locator with ¡such riparian ownership in the waters as to compel a court of equity to enjoin their subsequent appropriation and diversion for mining purposes.

5. This conclusion leaves but the single question of priority of right between plaintiffs and defendant, based upon their respective appropriations of the waters of Lurvey creek, to be determined. The plaintiffs’ location of the B. C. plácer claim was made on June 19, 1905, their water right was located on July 26th, and the notice filed and recorded on August 26th; and their complaint alleges that on the latter date they began work on the construction of their dam, and thereafter diverted the water for use in mining the B. C. placer. These ^legations are practically admitted by the evidence and may be taken as established in this case. !

The defendant relies upon the Gilbert location of tfie waters of Lurvey creek, made above the B. C. placer, on July 2, 1897, and the diversion at that point, and the continued wo'rk on the plant, and the final diversion in the summer of 1905. | To these claims the plaintiffs urge that defendant’s diversion was not prosecuted with due diligence, and cannot be legally related back to the Gilbert notice and preliminary work. |

The law of priority of appropriation upon which the parties in this case base their right to recover is the ninth section of the lode and water law of July 26, 1866, carried into the Revised Statutes of 1878 as section 2339, which reads as follows:

“See. 2339. 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 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; and the right of way for the construction of •ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain the party committing such injury or damage shall be liable to the party injured for such injury or damage.”

To constitute a valid appropriation of water three elements must always exist: First, an intent to apply it to some beneficial use, existing at the time, or contemplated in the future; second, a diversion from the natural channel by means of a ■ditch, canal, or other structure; and, third, an application of it within a reasonable time to some useful industry. Nevada Ditch Co. v. Bennett, 30 Or. 59, 87, 45 Pac. 472, 60 Am. St. Rep. 777, affirming same doctrine in Low v. Rizor, 25 Or. 557, 37 Pac. 82. In Oviatt v. Big Four Min. Co., 39 Or. 118, 126, 65 Pac. 811, the court held that an appropriator might use an •old abandoned miners’ ditch for the transportation of the water, and in Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 28 Am. St. Rep. 727, the same court held that:

“To effect the appropriation, any gulch, dry ravine, or depression in the land may be used as a part of the ditch for conducting the water.”

Judge JWolverton wrote the opinion in the case of Nevada Ditch Co. v. Bennett, supra, and the statement of the facts .shows that in the early summer of 1881 persons claiming an •appropriation of water from a public stream posted a notice at the head of the proposed ditch, as required by local customs,, stating the amount of water claimed, the purposes ¡for which it was to be applied, and the route and terminals. Work was begun shortly afterwards, and a dam was built and a diversion made for the purpose of aiding in the excavation.1 The first section, two miles long, was completed in the spring of 1882. During 1882 the ground was cleared for the excavation of the' second section to the further terminal. In the spring of 1883 the work was prosecuted till the irrigating season, when it was stopped to permit the use of water through the completed portion. It was resumed in the fall, and continued till the completion of the second section in the spring of 1884; and during that year water was run through the full len¿th of the two sections — nine miles — and used for irrigation ipurposes. Held, that the claimants, who were pioneers, and c)f limited means and facilities, exercised due and reasonable diligence' in the prosecution of the work. !

Judge Ross wrote the opinion in Osgood v. Eldorado Min. Co., 56 Cal. 571. The statement of facts in that cajse shows, that a survey was made for the ditch in 18*56, and notices posted ; surveyed lines run in 1858, and reservoir site lo¿ated; in 1860 other surveys, a. dam located, contracted fot; lumber, cleared intake, and posted notice of appropriation ,of Echo Take as a reservoir, and portions of the ditch were then completed; in February, 1867, new notice of appropriation posted; in 1868 worked on lower end of canal; in 1870 on upper end; in 1871 completed dam at Cedar Rock, and turned w^ter into canal. Thereafter from year to year the work was continued and completed in 1876, 20 years after it was first begtin.

“In this case, the jury found in favor of the defendant on both propositions, and, as observed already, in view of the verdict, we think there is sufficient evidence of notice and of due diligence in the prosecution of the work from a date anterior to the acquiring of any rights by the plaintiff. We think, further, from the whole record,. that substantial justice has been done by the jury and the court below between the parties litigant.”

The first appropriator who subjects the water to use, or takes the necessary steps for that purpose, is regarded, except as against the government, as the source of title in all controversies relating to the property. Atchison v. Peterson, 87 U. S. 507, 510, 22 L. Ed. 414; Basey v. Gallagher, 87 U. S. 670, 681, 22 L. Ed. 452. To constitute due diligence in diverting and appropriating water does not require unusual efforts or expenditures, but only such constancy in the pursuit of the undertaking as is usual with those in like enterprises; such assiduity as shows a bona fide intention to complete it within a reasonable time. Ophir S. M. Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550; Highland Ditch Co. v. Mumford, 5 Colo. 325, 2 Morr. Min. Rep. 3. In Oviatt v. Big Four Min. Co., 39 Or. 118, 126, 65 Pac. 811, 814, the court, discussing reasonable diligence, said:

“What constitutes such diligence must necessarily depend upon the nature and magnitude of the enterprise, and to some extent upon the organized effort put forth in accomplishing the desired object.”

It is perhaps true that, in considering what would be reasonable diligence in marking out the line of a proposed ditch and commencing work on the same, a court would not be controlled by any arbitrary rule, but would consider the circumstances confronting an appropriator of water (Cruse v. McCauley [C. C.] 96 Fed. 369, 373); that the mere acts of commencing the construction of a ditch, with the avowed intention of appropriating a given quantity of water from a stream, gives no right to the water unless this purpose and intention are carried out by the reasonable, diligent, and effectual prosecution of 'the work to the final completion of the ditch and diversion of the water to some beneficial use (Union Mill & Min. Co. v. Dangberg [C. C.] 81 Fed. 73, 95).

What constitutes a reasonable time within which the water must be applied to beneficial use is obviously a question of fact for the determination of the jury, or the court in equity cases, and depending upon the circumstances of each particular case. Long on Irrigation, § 47; Rodgers v. Pitt (C. C.) 129 Fed. 932, 941.

From time to time, as the appropriator completes parts of a planned enterprise for the beneficial use of water, the flow may be increased, provided that he act with reasonable diligence, that the flow shall not exceed the amount originally claimed, nor that which can be beneficially used, nojr a greater quantity than the original ditch or flume would carry. Klienschmidt v. Greiser, 14 Mont. 484, 37 Pac. 5, 43 Am. St. Rep. 652; Cole v. Logan, 24 Or. 304, 33 Pac. 568; Rogers v. Pitt (C. C.) 129 Fed. 932, 942.

The ninth rule adopted by the miners in the Harris mining district on February 18, 1882, and which seems to ¡be the law in principle, was as follows:

“Art. 9. By a compliance witli the above rules, the claiiinaut’s right to the use of the water relates back to the time the noti^ is posted.”

That rule states the law, even in the absence of, a miners’ rule or custom. In determining the question of the time when a right to water by appropriation commences, the law does not restrict the appropriator to the date of his use of the water, but, applying the doctrine of relation, fixes it. as oí the time when he begins his dam, or ditch, or flume, or other| appliance by means of which the appropriation is effected, provided the enterprise is prosecuted with reasonable diligencel Mining Co. v. Carpenter, 4 Nev. 534, 544, 97 Am. Dec. 550; Irwin v. Strait, 18 Nev. 436, 4 Pac. 1215; Kimball v. Gearhart, 12 Cal. 28; Canal Co. v. Kidd, 37 Cal. 283, 311; Osgood v. Mining Co., 56 Cal. 571, 578; Sieber v. Frink, 7 Colo. 149, 154, 2 Pac. 901; Woolman v. Garringer, 1 Mont. 535; Kin. Irr. §§ 160, 161; Black’s Pom. Water Rights, § 55; Union Mill Co. v. Dangberg (C. C.) 81 Fed. 73, 109.

6. The evidence in this case'shows that Gilbert’s notice of water right was posted on July 2,1897, while that of plaintiffs was posted July 26, 1905. Gilbert sold out to the defendant corporation in 1901. Plaintiffs contend that upon the evidence there was an abandonment of the Gilbert location and all rights under it for want of due diligence in putting the water to a beneficial use in good faith. In considering that question the court will look at all the surrounding circumstances, the magnitude of the undertaking in which the water is to be used, the condition of the climate and the topography of the ground, the distance from supplies, the efforts to bring supplies, material, and machinery to the point of use, and, generally, the whole plan of the enterprise in which the water is to be utilized, as well as the good or bad faith of the claimant.

The question of reasonable diligence is a relative one. What might be reasonable diligence in one plan of operation, one scheme of using the water, might not be such in another. The court cannot lay down an arbitrary rule, since the law does not, and declare, because the limit in that case is not complied with, in this case there is also failure. It is certain that Gilbert initiated a valid claim to the water in 1897, and diverted and used some of it, and that diversion and use was continued from year to year until 1905. Defendant made full use in compliance with the law and previous intention. But plaintiffs say there was an abandonment because of the want of reasonable diligence. Abandonment is a question of-intent, as well as of fact; and, when it is shown that possession has once attached, abandonment will not be presumed. Plaintiffs assert abandonment against the defendant, and under the Code must prove the affirmative of that issue.

The evidence, however, shows that in 1897, when Gilbert located this water, he owned several valuable quartz mines high on the mountain behind the water power; that his point of diversion was between those claims and his mill sites in the valley below; that the waters of Durvey creek tumbled down the mountain wall to the immediate vicinity of the mill sites, and was the only available supply in that neighborhood adapted by its location to his use in mills located on his mill sites; that his plan of development consisted in driving a funnel in the mountain to tap the perpendicular veins of ore far below their apex on the summit, with the further plan' of bringing the ore out through the tunnel to a point just beneath the water power and above the machinery for crushing and! milling the ore, so that the ore could be worked and milled down grade on its way to the valley. ;

In pursuance to this general plan of development, a boarding house for the accommodation of laborers was built, a blacksmith shop, and other buildings. Tunnels were run high on the mountain, and later the main or Alexander tunnel was driven 2,550 feet through the mountain till it struck the main ore bodies far below the apex. Water was turned out of Durvey creek at the point where the notice was posted, conducted in an old miners’ ditch to a spillway, and 'turned over the mountain wall to find its way by a natural carving in the mountain side to a point near the boarding house, where it was piped into the boarding house, blacksmith shop, and into the first upraise of the Alexander tunnel for use in blasting. All these uses were beneficial, were necessary to the general plan, continuous, and in good faith. These uses were made as early as 1903, two years before plaintiffs made any claim to the use of the water. After defendant, in 1902, began to work on this property, it planned a pipe line to ‘ conduct all the waters of this small creek, which was locafed, as was supposed, entirely on its own property, to the compressor, crusher, and mill for power in running the heavy‘and expensive machinery which it was then preparing to install. Defendant continued, as rapidly as the general plan of,the large development in which it was engaged would permit, to bring the waters to its compressor, crusher, and mill. It excavated-for a pipe line'from the mill up the mountain slope to a point, near the old spillway, where it prepared to receive the waters into the pipe, so as to give the necessary pressure at th.e mills. It excavated heavy cuts on the mill site for rock crusher,, compressor, and mill, and ordered pipe sufficiently heavy and-in quantity, lumber for new flumes from the intake on Purvey-creek, machinery for its mill, and generally continued actively, and with due diligence to prepare for the use-of the water power in its crusher, compressor, and mill.

On July 26, 1905, plaintiffs’ grantor located the waters of. Purvey creek, far below the intake of the defendant, for alleged use on the B. C. placer, which he had located on June, 19, 1905. The condition of the defendant’s works at that, time is disclosed by a photograph offered in evidence by the, plaintiff. Plaintiffs’ Exhibits Nos. 21 and 28, and the same photograph offered by defendant as Defendant’s Exhibit No.. 40. These photographs were taken on or before August 1,. 1905, while paragraph 5 of plaintiffs’ complaint alleges, and the evidence sustains it, that plaintiffs’ grantor’s notice of the appropriation of the waters of Purvey creek was filed for record on August 26, 1905—

“and that on said date the said V. McFarland did commence the construction of a dam in the bed of the said Lurvey creek at the point of location and appropriation aforesaid, and did thereafter immediately and continuously construct from said dam an intake and flume and carry the said waters over and upon the ‘B. C. fractional placer claim,’ and thereon construct flumes and sluices for the retention and collection of gold mined upon said placers, and erect upon said placers-a hydraulic giant and pipe, and with said waters began the washing - and mining of the said placer claim with the said waters.”

A careful inspection of the said photograph discloses at that time on the property of the defendant the large boarding house near the dump from the Alexander tunnel, which; was then completed 2,550 feet into the mountain, the excavations for the foundations of both the crusher and mill buildings, the presence on the ground of the material" for these buildings, and the presence of the blacksmith shop, pld boarding house, and other buildings, the excavation from the mill up the mountain side for the pipe line, and lumber and material for the new flumes at the intake. On August 1, 1905, when this photograph was made, plaintiffs had done nothing but locate the B. C. placer claim, and had made no attempt to locate or use the waters of Lurvey creek. ¡

There is one general rule, good in equity and law, which is recognized by the mining laws of the United States and enforced by the courts, and that is this: That if the miner is in actual possession in good faith, and is actively engaged in the work of developing his possessory rights on the public land of the United States, no one may enter upon his peaceable and actual possession and oust him therefrom. Eilers v. Boatman, 3 Utah, 159, 2 Pac. 66, 15 Morr. Min. Rep. 462, affirmed in 111 U. S. 356, 4 Sup. Ct. 432, 28 L. Ed. 454; Price v. McIntosh, 1 Alaska, 286, 301, affirmed McIntosh v. Price, 121 Fed. 716, 718, 58 C. C. A. 136; Bulette v. Dodge, 2 Alaska, 427.

That rule is as applicable to possessory rights , in water flitches for mining purposes as it is to other mining rights on the public.domain. The Supreme Court of Colorado; in a case where this point came up, said: |

“There is no reason for saying that the want of diligence in this ■ease, upon the part of the Colony Company, was such as !to prevent ■the appropriation of the water dating hack to the commencement of the work, there being no intervening claimants.” Highland Ditch Co. v. Mumford, 5 Colo. 325, 2 Morr. Min. Rep. 3, 13.

So that the rights of the parties are to be measured1 as of the date when, the plaintiffs claim to have initiated their ] rights to the water, and the evidence shows that on that date the defendant was in possession, and was actively and in good faith at work upon the final stages of a large development, taking years of time and a vast expenditure of money in its building and completion. It is my judgment that, when the plaintiffs attempted to locate the waters of Lurvey creek, the defendant had then in good faith located the same, and was using and had used due diligence in diverting and appropriating the whole thereof to beneficial uses, and was the owner and in possession thereof.

7. The plaintiffs bring this suit to enjoin the defendant from taking said waters, alleging their location thereof and intention to use the same for beneficial purposes. It appears from the pleadings and evidence that the only use the plaintiffs have for the water is to mine the B. C. fractional placer claim. This is a small wedge-shaped piece of ground lying within the general mass of defendant’s claims. It is in conflict with the Martin quartz claim, a prior location. A suit is pending in this court between plaintiffs and defendant on an application of the defendant for patent for the Martin claim, adversed in the land office by the plaintiffs. Only a small part of the B. C. placer is the undisputed property of the plaintiffs, and less than an acre of the undisputed portion can be worked with the water in question. That small area is not shown to have any value as a placer mine; the whole labor of the plaintiffs so far having produced from it less than $10 worth of gold. The court in this case cannot try the questions of conflicting titles in the adverse suit upon this application for injunction; nor will a court of equity grant an injunction where the title is doubtful and in dispute between the parties, and no waste is shown, but will wait till the title is first settled between them. Beach on Injunctions, §§ 20, 998. Nor will the court grant an injunction where plaintiffs’ rights are doubtful. Beach on Injunctions, § 21.

• In' this case the plaintiffs’ right to the B. C. placer is in dispute in greater part. The portion not in conflict is not shown to have any value as mining ground. The evidence also leaves it an open question whether or not the plaintiffs are suffering any loss or damage, or can make any beneficial use of the waters in question. The evidence does not disclose any equity in plaintiffs’ claims, but the reverse; for'it appears to me to be an attempt to impose a technical claim upon these waters by which the plaintiffs would destroy the valuable property of the defendant, built as it was upon the faith of the water power from Lurvey creek. The ownership of the waters of Lurvey creek is a property right of far greater value to the defendant than the value of the B. C. fractional placer so far as the evidence discloses that it has hny value. If plaintiffs succeed in securing the ownership of jflie water, they could thereby force the defendant to purchase the same for a sum far above any prospective value of their placer claim, because of the large investment which defendant has already made, depending upon the cheapness of the motive power in that water. That design seems to be the true issue in this case, and it does not commend itself to eqliity. Edwards v. Allouez Min. Co., 38 Mich. 46, 51, 31 Am. Rep. 301.

The defendant has shown due diligence in appropriating these waters, and, having appropriated them to beneficial use prior to any rights of the plaintiffs attaching, defendant’s rights relate back to the inception of the grant by the government — to the original notice and diversion by Gilbert. The defendant’s flumes from both branches of Lubvey creek were built, and the water appropriated — in good faith — from both, prior to any appropriation or diversion or claim thereof by the plaintiffs, .and there must be a decree for defendant.

Let findings of fact, conclusions of law, and decree for defendant be prepared in accordance with these views. .