out forfeiting his priority of right. Maeris v. Bicknel, 7 Cal. 261; s. c., 68 Am. Dec. 257; Davis v. Gale, 32 Cal. 26. Where proper diligence is not shown in the construction or enlargement of a ditch, the rights of intervenors will be protected. Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534.

The general rule as to abandonment applies to water rights. Hanover Water Co. v. Ashland Iron Co., 84 Pa. St.

279.

The California cases above cited hold that no mere suspension of work constitutes an abandonment of the right. This right, like any other, may be abandoned, but "it is not held upon any condition by which it may be lost, unless it be failure to accomplish, or the final accomplishment of the purpose of appropriation." Yale on Min. Claims, p. 139. The same view is held in Montana. Atchison v. Peterson, 1 Mont. 561. And after the use for which it is first appropriated has ceased, the appropriator may hold it for sale. Fabian v. Collins, 2 Mont. 510, 515.

After the water has been used it may be abandoned and it then becomes again, publici juris, subject to be again appropriated by others. Davis v. Gale, 32 Cal. 26; Woolman v. Garringer, 1 Mont. 535; Barkley v. Tieleke, 2 Mont. 59. See Dougherty v. Creary, 30 Cal. 290.

Colorado has a statutory provision to this effect. Gen. Stat. (1883), § 2421. And when water has been appropriated for use upon a mining claim, it must, after having served its purpose upon such claim, be discharged therefrom for the use of owners of claims below, subject only to the reasonable diminution and deterioration by its nec

essary use on the first claim. Alder Gulch Cons. Min. Co. v. Hayes, 6 Mont. 31; McKinney v. Smith, 21 Cal. 374.

The location of a mill site is not an appropriation of water for the purposes of the mill. Robinson v. Imperial S. Min. Co., 5 Nev. 44.

An interest in water acquired by appropriation, which is attempted to be conveyed by an imperfect deed, operates as an abandonment of the title obtained by appropriation. Equity affords a proper remedy to protect the vendee's interest. Barkley v. Tieleke, 2 Mont.

59.

The right to use the water does not give a right to fill the watercourse with debris and tailings and allow it to flow down onto the ground of another locator. And the owner of the lower location may erect a dam in the stream to protect his property from such debris and tailings. Nelson v. O'Neal, 1 Mont. 284; Logan v. Driscoll, 19 Cal. 623; Robinson v. Black Diamond Coal Co., 50 Cal. 460; s. c., 57 Cal. 412; s. c., 40 Am. Rep. 118.

But it is held in England that the right to throw refuse from mines into a natural stream may be established by prescription or by custom. Bainbridge on Mines, p. 124. See, infra, note 4, p. 585.

A clause protecting water rights is inserted in all patents for lands in the mining States and Territories. Land Off. Rul., Copp's Min. Lands $4.

There is no such thing as a riparian right to water not in a regular channel, but which merely overflows the land, percolates through it, or flows in an undefined subterranean channel. Bainbridge on Mines, p. 125; Wheatley 7. Baugh, 25 Pa. St. 528; Haldeman v. Burckhardt, 45 Pa. St. 514; Trout v. McDonald, 83 Pa. St. 144; Acton v. Blundell, 12 M. & W. 324; Ellis v. Duncan, 21 Barb. (N. Y.) 230. Compare Barnes v. Sabron, 10 Nev. 217.

Where a stranger uses water drawn off from a mine, he acquires no such right to it as will prevent the mine owner from cutting it off by draining the mine at a lower depth, though such water had been used many years for manufacturing purposes. Arkwright v. Gell, 5 Mees. & W. 203. See Magor v. Chadwick, 11 Ad. & El. 571; Acton v. Blundell, 12 Mees. & W. 324. As to remedies, see, infra, pt. XII.

Appurtenance. As to when a water ditch is an "appurtenance" to a mining claim, see Quirk v. Falk, 47 Cal. 453; McShane v. Carter (Cal.), 22 Pac. Rep. 178; s. c., 29 Am. & Eng. Corp. Cases.

1. Act July 26th, 1866, § 9; U. S. Rev. Stat.. 2339; Rivers v. Burbank, 13 Nev. 398; Broder υ. Natoma W. & Min. Co., 50 Cal. 621; s. c., in error, 101 U. S. 274.

This section is to be read in connection with other provisions of the act of which it is a part, and in the light of matters of public history relating to the

mineral lands of the United States. Its object was to give the sanction of the United States to possessory rights which had previously rested solely upon the local customs, laws and decisions of the courts, and to prevent such rights being lost on a sale of the lands.

Prior to the act of 1866, the waters of rivers and lakes had been "carried great distances in ditches and flumes constructed with vast labor and enormous expenditure of money along the sides of mountains and through cañons and ravines, to supply communities engaged in mining, as well as for agriculturists and ordinary consumption. Numerous regulations were adopted or assumed to exist, from their obvious justness, for the security of these ditches and flumes and the protection of rights to water, not only between different proprietors, but between them, and the holders of mining claims. It was for the purpose of securing rights to water and rights of way over the public lands to convey it, which were thus recognized, that the ninth section was adopted, and not to grant rights of way where they were not previously recognized by the customary law of miners. The proviso to the section conferred no additional rights upon the owners of ditches subsequently constructed; it simply rendered them liable to parties on the public domain whose possessions might be injured by such construction. In other words, the United States by the section said that whenever rights to the use of water by priority of possession had become vested and were recognized by the local customs, laws and decisions of the courts, the owners and possessors should be protected in them, and that the right of way for ditches and canals incident to such water rights being recognized in the same manner, should be acknowledged and confirmed; but where ditches subsequently constructed injured by their construction others on the public domain, the owners of such ditches should be liable for the injuries sustained." Jennison v. Kirk, 98 U. S. 453; Broder v.Water Company, 101 U. S. 279. The section does not authorize the construction of a ditch over another's mine, where the result would be the total or partial destruction of his property, without showing a necessity therefor and paying or securing the damage. Noteware v. Sterns, 1 Mont. 311; Titcomb v. Kirk, 51 Cal. 288.

Flumes are a part of the ditch. Elli

son v. Jackson Water Co., 12 Cal. 542. So is a dam which is essential to the flow of water in the ditch. Castleberry v. State, 62 Ga. 442; and the owner of a mining claim comprising the bed of a cañon may erect dams across the bed thereof to enable him to work the same, even if other mining claims on the banks of the cañon are thereby flooded, provided his claim is the oldest location; the injury sustained by the owner of the bank claim is damnum absque injuria. Stone v. Bumpus, 47 Cal. 218; Tenney v. The Miners Ditch Co., 7 Cal. 335.

The proprietors of a mining ditch are tenants in common. Bradley v. Harkness, 26 Cal. 69.

The conveyance of a mining ditch is not a grant of an easement or an incorporeal hereditament. Reed v. Spicer, 27 Cal. 57. See Union Water Co. v. Murphy's Flat Co., 22 Cal. 620; Bradley v. Harkness, 26 Cal. 69.

The right of eminent domain cannot be exercised in favor of the owners of mining claims, to enable them to obtain water for use on such claims, though it is intended also to supply the water to others for mining and agricultural purposes. Lorenz v. Jacob, 63 Cal. 73. Compare 6 Am. & Eng. Encyc. of Law, 527, 528.

Under the California customs one party might locate for mining purposes and another the same ground for water purposes, and the two locations were not conflicting. Jennison v. Kirk, 98 U. S. 453; O'Keefe v. Cunningham, 9 Cal. 589.

By the customary law of miners in California the owner of a mining claim and the owner of a water right enjoy their respective properties from the date of their appropriation, the first in time being the first in right. But where both rights can be enjoyed without interference with or material impairment of each other, the enjoyment of both is allowed. Where the chief value of the water is to enable the miner to work his mining claim, it is not sufficient that the latest appropriator so constructs his ditch or uses his water as not to interfere with the water in the first appropriator's ditch. The last appropriator must also see to it that the first appropriator is not injured in the working of his mining claim. It was not intended to make any distinction between the two rights mentioned in the section. And while it was claimed in this case, when in the California supreme court, that only the right

to the use of water on the public lands acquired by priority of possession was dependent upon local customs, laws and decisions of the courts, but that the right of way over such land for the construction of ditches and canals was conferred absolutely upon those who had acquired the water right, and was not subject in its acknowledgment to such local customs, laws and decisions, the court held that such position could not be maintained. Jennison v. Kirk, 98 U. S. 453.

1. Last clause of the ninth section. See cases cited under last note.

A party digging a ditch across the public lands of the United States, cannot be held responsible for damages to one coming into possession of such lands after the completion of the ditch. Shoemaker v. Hatch, 13 Nev. 261.

The Supreme Court of California has held that, under the State act of April 20th, 1852 (Comp. Laws S96-8), persons could enter upon land occupied for grazing and agricultural purposes, for the purpose of mining only; but that the act does not authorize the construction of ditches over land thus held without the consent of the occupant, though such ditches were designed to convey water to mining localities for the purpose of mining. The ground of the decision is that the legislature has legalized what would otherwise have been a trespass, and could not be extended by implication to purposes not mentioned in the act. Such ditches were, therefore, held to be nuisances which would be abated when com

plained of by the agricultural occupant. Stoakes v. Barrett, 5 Cal. 36; McClintock v. Bryden, 5 Cal. 97; s. c., 63 Am. Dec. 87; Fitzgerald v. Urton, 5 Cal. 308; Burge v. Underwood, 6 Cal. 46; Weimer v. Lowery, 11 Cal. 104.

Miners engaged in extracting min

eral from the soil or from a vein are not "settlers" within the meaning of the Settlers act of California, passed in March, 1856. Fremont v. Seals, 18

Cal. 433.

The appropriator of a stream for

mining purposes must use it so as not to damage grounds along the stream which had been cultivated prior to the appropriation of the stream. Wixon v. Bear River & A. Water & Min. Co., 24 Cal. 367.

The common law rule is that the owner of the artificial course must keep it in repair, and is liable for damages arising from want of repair. Bainbridge on Mines 139. See also article WATERCOURSES and IRRIGATION.

2;

2. Bainbridge on Mines, ch. IV, Clark v. Railroad Co., 28 Vt. 103; Proud v. Bates, 34 L. J. Ch. 406; s. c., 13 L. T. Rep., N. S. 61; Farnum v. Platt, 8 Pick. (Mass.) 339; s. c., 19 Am. Dec. 330; Rankin's Appeal (Pa.), 2 L. Rep. Am. 429; s. c., 16 Atl. Rep. 82.

But this is very different from a right of way from one mine to another, which ordinarily passes only by express grant. Bainbridge on Mines, p. 68 (105); Bowser v. Maclean, 2 De G. F. & J. 415. See infra, subtitle EASEMENTS.

The principles which apply to rights of way upon the surface are equally applicable when such rights of way happen to be under ground. Pomeroy v. Salt Co., 37 Ohio St. 520.

Any proper and convenient way may be constructed, even a railroad. Bainbridge on Mines, ch. IV, § 2, pp. 105, 106; Senhouse v. Christian, 1 T. R. 560; Dand v. Kingscote, 6 Mees. & W. 174; Abson v. Fenton, 1 B. & C. 195; Bishop v. North, 11 M. & W. 418. See Dyce v. Hay, 1 Macg. (Sc. H. of L.) 305; Durham & S. Railway Co. v. Walker, 2 Q. B. 940; s. c., 2 Ġ. & D. 326; Bowes v. Ravensworth, 29 E. L. & E. 247; s. C., 15 C. B. 512.

The miner is not restricted to the shortest possible route. Richards v. Richards, 1 Johns. (Eq.) 255. See also title PRIVATE WAYS, infra; EASEMENTS,6 Am. & Eng. Encyc. of Law, 138.

A coal company has no authority to condemn land for a tramway, the coal works and the existing tramway being private property, and the public generally having no more interest in them

than in any other private business. Sholl v. German Coal Co., 118 Ill. 427. Compare 6 Am. & Eng. Encyc. of Law, 527, 528. But see Millett v. People, 117 Ill. 294.

See Abson v. Fenton, 1 Barn. & Cr. 196, as to the construction of the words "convenient and necessary way."

1. U. S. Rev. Stat., § 2336; Lee v. Stahl, 9 Colo. 208; Pardee v. Murray, 4 Mont. 234; Morgenson v. Middlesex M. & M. Co., 11 Colo. 176.

And upon a grant of the cross vein, such right of way would pass as an incident thereto. Branagan v. Dulaney, 8 Colo. 408.

2. Act of July 26th, 1866, § 8 (14 Stat. at L. 252); Land Off. Rulings, Copp's Min. Lands 83. See also U. S. Rev. Stat., § 2477

Eminent Domains.-But where location rights have become vested, the land cannot afterwards be taken for a highway, unless there is some law providing for compensation to the locators. Robertson v. Smith, 1 Mont. 410. See also Murray v. Butte, 7 Mont. 61.

As to measure of damages, see Montana R. Co. v. Warren, 6 Mont. 275.

A right of way obtained by ad quod damnum proceedings to one's own mines or quarries must be open to the owners of other mines or quarries upon proper compensation. Jones v. Mahaska Co. Coal Co., 47 Iowa 35. See this case as to the costs of the proceeding.

Right of way under a lease construed in Gumbert v. McCracken (Pa.), 18 Atl. Rep. 1068.

3. U.S. v. Nelson, 5 Sawy. (U. S.) CS; Tartar v. Spring Creek W. & M. Co., 5 Cal. 395; Whitman Min. Co v. Baker, 3 Nev. 386.

He cannot take the timber on a neighboring ranch claim. Rogers v. Soggs, 22 Cal. 444.

As to construction of the term "mineral districts" in the Timber act of June 3rd. 1878 (20 Stat. at L. 88), see U. S. v. Smith, 11 Fed. Rep. 487; U. S. v. Benjamin, 21 Fed. Rep. 285; U. S. v. Heilner, 26 Fed. Rep. So.

As to measure of damages for cutting timber, see Yahoola River and Cane Creek Hyd. H. Min. Co. v. Irby, 40 Ga. 479.

A tenant for life, entitled to mine, may cut the timber necessary for mining purposes. Neel v. Neel, 19 Pa. St. 323.

As a question of law the timbering done need not be put in strong enough to resist cars running off the track; so held in a case of accident to an employee. Silliman v. Marsden (Pa.), 9 Atl. Rep. 639.

4. Act of July 26th, 1866. § 5 (14 Stat. at L. 252); U. S. Rev. Stat., § 2338.

This section gives to the legislatures of the mining States and Territories ample powers to enact all necessary rules and regulations for the proper working and development of mines, Land Office Rulings, Copp's Min. Lands 79, 80; and under it several of the States and Territories have enacted laws affecting and somewhat modifying the principles above stated as to water rights and rights of way.

Thus the legislature of Arizona has provided that mining lands should not be irrigated from any stream of water unless the stream should contain more water than is required or used for mining purposes, and that the use of water for irrigating such land for agricultural purposes shall not vest in the person so