Sims v. Smith

7 Cal. 148

• Court: California Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Murray, C. J.,

delivered the opinion of the Court—Terry, J., concurring.

This ease ought properly to be dismissed, as the appellant has not furnished the Court with a brief or abstract of the record, and we cannot, in reason, be expected to do the work of counsel in cases brought here on appeal. There is, however, a paper on file, which may have been intended as an assignment of errors.

The first point relied on, is the refusal of the Court to permit the witness Lester to answer the second interrogatory propounded to him. This question might have been allowed without any impropriety, but, as it is not shown that the question had any particular reference to the case, and it also appearing that the plaintiffs were the prior locators, there was no error in excluding the answer.

In fact, it was not material how high the tailings from the plaintiffs’ claim would have accumulated at the defendants’ dam, as they were entitled to the use of the bed of the stream for the purpose of fluming or working their claim, and the erection of the dam was an interference with their rights.

The second instruction given by the Court is correct. Where parties have located mining-claims upon the bank of a creek or stream, and are using the bed of said stream for the purpose of working their claims, any subsequent erection, dam, or embankment, which will turn the water back upon such claims, or hinder them from being worked with flumes, or other necessary means or appliances, is an encroachment upon the rights of said parties, and they are entitled to recover for the damages consequent on such obstruction.

Judgment affirmed.