Sullivan v. Northern Spy Mining Co.

The main question in this case, and the only one, in iact, which we deem it necessary to consider, is, can the •discoverer of a flow of percolating waters on the public lands, by digging wells and improving the same and constantly using the water for a beneficial purpose, acquire a right to take water from such wells as against an owner ■of the land on which the well is located, where the owner ■of the land acquired title by a location made subsequent to the digging of the wells? Many other questions are raised on this appeal, but their materiality all depends on the answer to the question just stated. If this question is •answered in the affirmative, the judgment must be affirmed; if answered in the negative, it must be reversed; •so we do not deem it necessary to examine the other questions presented.

We are not aware of any case having been decided in these arid regions, in which this precise question has been passed upon. The doctrine may be said to be settled that the owner of lands has a right to dig thereon, and to •appropriate and use percolating waters therein, although by so doing he may dry up the wells or spring of an adjacent proprietor. See Hanson v. McCue, 42 Cal. 303; Kinney, Irr. §§ 49, 298; Railroad Co. v. Dufour, 95 Cal. 615, 30 Pac. 783. But this rule does not determine the •case at bar. The facts here, so far as necessary to be stated, are: The plaintiffs are the owners of a mining claim in Tintic mining district, located in 1889. When this claim was located there was a well dug in the ground, •and one Barney had a house at or near this well, and was engaged in hauling water from the well to the defendant. The defendant continued to procure water from the well, and plaintiffs bring this suit to recover damages, ¿alleging trespass.

The undisputed facts are that the predecessors in inter*442est of Barney and the defendant, in about 1870, discovered evidences of percolating waters at the point where the well was dug, and by digging a hole about three feet deep procured a supply of water. These discoverers were miners, and were working a mine, part of which, at least, the defendant now owns. It seems that this hole or well, if it may be called such, was so shallow that cattle and horses on the range came to it and trod down its banks, so that the discoverers arranged with one Barney that if he would repair the well, wall it up, and protect it, he-might use water therefrom. Barney did this, and put in a pump. For about 20 years it remained in t0his condition. The well, being in the midst of a desert, was used as a. source of water supply for several mines in the neighborhood, and was all the time on public lands of the United States. In 1889 the plaintiffs located the ground, including the well and Barney’s house as a mining claim. In 1890 Barney conveyed, whatever right he had in the premises to the defendant, and it continued to procure water from the well. The well is shown to be from 10 to 15-feet deep, and to furnish a very abundant supply of water. The question is, has the defendant an easement in plaintiff’s land to continue to take water from the well constructed by its predecessors? The federal government, as-proprietor of the public lands, early recognized the necessity of permitting persons in this arid region to acquire, an interest in water sources on the public lands distinct-from the lands themselves. It had always been the settled law that the owner of land was likewise the owner of all waters situate thereon or percolating therein. This may be said to have been the universal rule in the United States, prior to the settlement of California. Local decisions, arising from the necessities of the people, soon altered it there, and in 1866 Congress passed an act (14 Stat. 253•: Bev. St. § 2339), which provided, among other things, as *443follows: “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.5’ By the act of July 9, 1870 (16 Stat. 218; Rev. St. § 2340) it was further provided: “All patents granted, or preemption, or homesteads allowed, shall be subject to-any vested and accrued water right, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the-preceding section.”

The question is, then, is the right of defendant to use-water, under the facts stated, one that is recognized by the local customs and laws? Section 2780, Comp. Laws-Utah, provides: “A right to the use of water for any useful purpose, such as domestic purposes, irrigating lands, propelling machinery, washing or sluicing ores and other like purposes is hereby recognized and acknowledged to have vested and accrued as a primary right to the extent of and reasonable necessity for such use thereof under any of the following circumstances: First, whenever any person or persons shall have taken, diverted and used any of the unappropriated water of any natural stream, water course; lake or spring or other natural source of supply.” - We think it would be a very strained construction to hold that a hole dug three feet deep, into which the water» naturally gathered was not a natural source of supply, while it is conceded if the water came to the surface and flowed along a few feet, and was then collected in a like hole, it would be a natural source of supply. -We are inclined to give these statutes a much broader construction. In our opinion, wherever the industry of the pioneer has appropriated a source of water, either .on the surface of *444or under the public lands, he and his successors acquire an easement and right to take and use such water to the -extent indicated by the original appropriation, and that a private owner who subsequently acquires the land takes it burdened with this easement, and we also hold that this easement carries with' it such rights of ingress and egress as are necessary to its proper enjoyment. This right of an appropriator is, of course, subject to the rule of law which will permit the owner to sink an adjoining well on his own premises ■ although he should thereby dry up that of the first appropriator. The determination of this question disposes of the whole case, and it is therefore ordered that the judg.ment be, and it is, affirmed.