IV. TAILINGS AND REFUSE.

A. Property therein and their Deposit on the Land.

At common law the mine owner is bound to dispose of his refuse so as not to injure others; he may not deposit it on the lands of others, but must deposit it on his own land, or on the surface land beneath which his mines lie. Where the minerals are owned by one person and the soil by another, the former has a right to deposit his refuse upon the surface. This right is limited to the refuse of the mines beneath the particular surface estate, but it may, by the terms of the conveyance or contract, be enlarged to include that from adjoining mines. But he must make the deposit in such manner as to occasion the least possible damage to the surface.

The mine owner is subject to the further obligation to make the deposit on his own land in such a manner that the refuse will not by the ordinary action of nature be carried upon the land of others. Where the refuse is liquid, as in the case of oil wells, the disposal of it is governed by the rules stated in the next subdivision in regard to the pollution of streams.

A different rule from that at common law seems to have prevailed in those Western States where placer and hydraulic mining are carried on extensively. It was early held in California that a miner might appropriate a dumping ground of the public domain if he did not interfere with pre-existing rights. This land might subsequently be located as mining ground subject to the prior right of deposit, but not, however, to a subsequent one. The right to the use of such dumping ground may be lost by adverse possession. But even a prior locator must work his claim with reasonable care. In so doing he may, by the discharge of his tailings, do some necessary injury to subsequent locators on lower ground for which he will not be liable, provided he does not thereby destroy the value of the latter claims. or prevent the mining of them. But he may not let his tailings unrestrained run down a natural channel, without regard to the damage they may do. A custom to do so will not justify it. In Colorado this subject is regulated by statute,2 by which it is made the duty of every miner to take care of his own tailings

1 Page 613, post.

2 M. A. S. 3144.

on his own property, or become responsible for all damages that may arise therefrom.

The measure of damages for depositing refuse on the ground of another is the cost of removal, but no larger amount than the value of the lot can be recovered.

The tailings or refuse of a mine are the property of the mine owner. This property he may, however, abandon, either by casting the refuse away, or by suffering it to go where it will unobstructed. If it flow upon the land of another, he is entitled to it. When once abandoned, any one may appropriate it, provided it is not reclaimed before this appropriation. The original owner may reclaim it, though another with a view to its appropriation has incurred expense. The latter's right is contingent upon continued abandonment, and the owner is not obliged to continue the abandonment. Where tailings have been deposited upon public lands, which have no value except for such tailings, the land may be located as mineral land, a possessory title to it may be gained in the same way as to mineral lands, and the holder of such a title may recover damages against any one removing the tailings.

The obligation of a lessee as to tailings and refuse, and his property therein, are governed by the terms of his contract. As a lessee's right is generally to take mineral of specified kinds, he has, in the absence of provision to that effect, no right to tailings; these are the property of the owner. A covenant in a lease to remove all rubbish at the end of the term applies only to such as result from the operations during the lease.

In several of the States the right of eminent domain has been conferred upon mine owners to take rights of way for the purpose of conducting their tailings away from their mines, and even to take ground for places on which to dump their refuse.1

A proceeding under the California statute was held unconstitutional as an attempt to take property for private uses.

California.

Jones v. Jackson, 9, 237 (1858). The pay dirt, and tailings of a miner, which are the products of his labor, are his property. When a place of deposit for tailings is necessary to the working of a mine (as where the deposit is of such a character that the first washings only extract a portion of the gold), there can be no doubt of the miner's right to appropriate such ground as may be neces

1 California, Code Civ. Proc. 1238; Georgia, Code 1882, art. 7, secs. 742753; Idaho, Rev. Stats. 1887, secs. 3130,

3142; Montana, Pol. Code 1895, secs, 363041; Code Civ. Proc. 1895, sec. 2211; Utah, Act March 12, 1890, c. 37.

sary for this purpose; provided he does not interfere with pre-existing rights. His intention to appropriate such ground must be clearly manifested by outward acts. Mere posting notices is not sufficient. He must claim the place of deposit as such or as a mining claim.

To suffer the tailings to flow where they list without obstructions to confine them within the proper limit, is conclusive evidence of abandonment, unless there is some peculiarity in the locality constituting an exception to this rule. If no artificial obstruction is required to confine them within the proper limits, then notice is necessary. If a miner allows his tailings to mingle with those of other miners, this does not give a stranger a right to the mixed mass. Where tailings are allowed to flow upon the claim of another, he is entitled to them.

O'Keiffe v. Cunningham, 9, 589 (1858). One party may locate ground in a mineral district for fluming purposes, and another may at the same or another time locate the ground for mining purposes. The locations, being for different purposes, will not conflict. A party may locate a claim for mining purposes on land which has been and still is used as a place of deposit for tailings by another. His mining right will be subject to this prior right of deposit, but not to that of a third party, who subsequently attempts to use the land as a place of deposit for his tailings.

Esmond v. Chew, 15, 137 (1860). The owner of mining claims situated in the bed of a cañon has not the right to build a flume and deposit tailings upon the claim of another subsequently located below him, on the ground of necessity.

It was error for the court below to charge "that a person first locating a mining claim in the bed of a stream is entitled to the channel below as an outlet, and that when such outlet from the usual mining operations above becomes obstructed he may open the same, and if he can do so by no other means, may construct a flume down the channel as far as necessary, and as far as the same can be constructed without considerable damages to the claims subsequently located."

Logan v. Driscoll, 19, 623 (1862). Plaintiffs owned mining claims in the bed of a creek, defendants owned claims upon the hill above, in working which they caused large quantities of rock and earth to rush down the hill by the force of the water which they used, covering up and destroying the plaintiffs' works, and rendering it impossible for them to use their claims.

It was not error to charge that a subsequent locator had no right to so work and use his claim as to deprive a prior locator of the use of his claim, that such a use was unreasonable, and in such a case the rule of first in time, first in right, applied. Plaintiff being the prior locator, was entitled to damages and an injunction.

Dougherty v. Creary, 30, 290 (1866). If miners engaged in washing their claims with water abandon the water and tailings which pass from their mining grounds, any other persons have a right to take and appropriate the same to their own use, but their right is contingent on the fact of continued abandonment. It does not become obligatory on the persons abandoning to continue to do so, even though other persons, encouraged by the circumstance of abandonment for a time, have incurred the expense of constructing flumes to use the abandoned water and tailings.

Gregory v. Harris, 43, 38 (1872). A party mining upon a ravine which runs into another ravine is not clothed by virtue of his right to use the ravine upon which he is mining as an outlet for his tailings, with the general right to break in at any point he may select upon the tail-race of another constructed in the other ravine, and to discharge his tailings therein.

Consolidated Channel Co. v. C. P. R. Co., 51, 269 (1876). Code Civil Proc., sec. 1238, subd. 5, provides for the exercise of the right of eminent domain in behalf of tunnels, ditches, flumes, pipes, and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from the mines." A mining company sought to have land of a railroad condemned under this act for the purpose of building a flume and having a place to dump tailings. A demurrer to the complaint was sustained on the ground that the proceeding was unconstitutional, as taking prop‐ erty for private uses.

McLaughlin v. Del Re, 16 Pac. 881 (1886). In an action to recover damages for dumping tailings upon plaintiff's land, and for an injunction to restrain a continuance of such injury, a judgment for the plaintiff is supported by the finding that the plaintiff had for more than ten years been in open, notorious, exclusive, and adverse possession of the land, though it was originally claimed for a dumping ground, under miners' regulations, by the defendant's grantors.

Colorado.

Fuller v. Swan River Min. Co., 12, 12 (1888). Under M. A. S., 3141, miners must take care of their tailings on their own property. Evidence of a custom to dump their tailings on their own ground, and let them take care of themselves, is insuflicient to prevent the issuing of an injunction against the washing of tailings upon plaintiff's claim. Nothing but plaintiff's consent will excuse this act.

Idaho.

Ralston v. Plowman, 1, 595 (1875). Plaintiff built a flume, through which he discharged his tailings on the ground of defendant, who was a prior locator. The latter built a flume entirely on his own ground, and his tailings filled up the plaintiff's flume. Held, plaintiff has no right of action, so long as he was not prevented from dumping on his own ground.

Illinois.

MeGoon v. Ankeny, 11, 558 (1850). One who having made slag, and considering it worthless, casts it away with the intention of abandoning it, thereby divests himself of the title, and any person may appropriate it, the original owner having no more right to complain than if he had never owned it, unless he reclaimed it without violating the rights of others, and before its appropriation by others.

Coppinger v. Armstrong, 5 Ap. 637 (1880). A covenant by the lessee in a lease of land with the right to use rock and burn lime, that all rubbish and spawls should be removed at the expiration of the term, is binding on the assignee of the lease.

Coppinger v. Armstrong, 8 Ap. 210 (1881). But this covenant does not apply to rubbish and spawls on the premises at the execution of the lease, but only such as result from the operations under the lease.

Montana.

Lincoln v. Rodgers, 1, 217 (1870). A custom by which those holding mining claims in a gulch may let their tailings run down the natural channel without cribbing the same, without regard to the damage done to those having claims below, cannot be sustained. In an action for damages for washing down tailings on plaintiff's claim, whereby it was rendered valueless, such a custom is no defence. The defendants in working their claims with reasonable care, under prior locations, might do some necessary injury to plaintiffs which would be damnum absque injuria. "But a mining custom which would allow the total destruction of a junior locator's mining operations, in a gulch below prior locators, on ground which was vacant, cannot be maintained under any statute or any common mining law with which we are acquainted."

Where persons locate ground for the purpose of constructing a flume, they can locate any number of feet, not in violation of the mining regulations of the district, and, if there are no regulations, not exceeding a reasonable amount for the deposit of tailings or dump; but the boundaries of the same must be marked in accordance with the regulations of the district, or, if there are none, by fixing the boundaries by such physical marks as will advertise the precise ground claimed for mining and dump, so that those wishing to locate thereafter may know what is vacant."

Nelson v. O'Neal, 1, 284 (1871). It is not an abuse of discretion for a court to refuse to enjoin parties from building a dam upon their mining ground to prevent tailings from injuring their property. Miners are entitled to the free use of the channel of a creek so that water will flow from their own ground, but they have no right to fill the channel with tailings that will flow down upon the claims of others.

Nevada.

Harvey v. Sides S. M. Co., 1, 539 (1865). Where the plaintiff claimed damages for the deposit of a dump pile from a quartz lode upon his building lot, and it was shown that the cost of removing the dump would be greater than the value of the premises, the measure of damages is limited by the value of the lot, although in ordinary cases the measure of damages would be the cost of removal.

Rogers v. Cooney, 7, 213 (1872). If land be of value only for tailings which have been washed down a stream and deposited upon it, and it is claimed for no other purpose, though not strictly mineral land, the acquisition of possessory title to it is governed by the same rules as such titles to mining claims.

A person who enters upon such land when vacant for the purpose of digging, hauling away, and milling the tailings, has a survey made and recorded, marks the boundaries with large posts, and continuously works the claim and builds a cabin on it for storing tools, can maintain trespass against an intruder entering his boundaries. His right to the tailings is coextensive with his ght to the land, and he may recover for their removal.

Genet v. D. & H. Canal Co., 122, 505 (1890). PlainNew York. tiff "leased" to defendant "all the coal contained on, in, or under" a certain tract, and further granted rights of way for roads, ditches, and drains, "with the right to erect drains on the