Jacob v. Day

Citations

• 111 Cal. 571
• 44 P. 243
• 1896 Cal. LEXIS 625

Syllabus

<p>Water Rights—Hydraulic Mining—Easement for Tailrace—Right of Wat under Act of Congress.—The use of water for the purpose of carrying off the tailings, and the construction of a ditch to aid therein, are as essential to the successful conduct of hydraulic milling, as is the first use to which the water is put in washing down the natural hank; and the title to an adjoining mine passes under patent from the United States subject to the easement of the right of way for a ditch nsed, in accordance with local mining customs, as a tailrace from a hydraulic mine across the patented ground prior to the patent under the provisions of sections 2339 and 2340 of the Revised Statutes of the United Slates.</p> <p>Id.—Mining Customs—Evidence—Pleading.—In support of title, evidence of mining rules and customs may be given under the general issue, without specially pleading such rules and customs.</p> <p>Id. —Easement for Drainage—Ditches for Mining Purposes—Construction of Act of Congress.—The easement for the tailrace of a hydraulic mine is not an easement for drainage within the meaning of section 2338 of the Revised Statutes of the United States, excluding easements for drainage from the purview of the act of Congress; but is a right to the use of water for mining purposes and for the construction of ditches for such purposes within the meaning of sections 2339 and 2340 of said statutes.</p> <p>Id.—Contest of Mining Patent—Estoppel of Former Judgment-Pleading.—Where the holder of a mining patent suing as plaintiff relies upon an estoppel of a former judgment against the predecessors of the defendants in support of his title, rendered in a contest of the application for the patent, it is proper that he should plead such estoppel, and it is error to strike it from the complaint, when properly pleaded.</p> <p>Id.—Insufficient Proof of Estoppel—Judgment of Nonsuit—Claim of Easement.—Where, in the contest of plaintiff’s application for a patent, the predecessor of defendants instit