The defendant was enjoined from further deposit of débris in te river.

"To make use of the banks of a river for dumping places, from which to cast into the river annually six hundred thousand cubic yards of mining débris, consisting of boulders, sand, earth and waste material, to be carried by the velocity of the stream down its course, and into and along a navigable river, is an encroachment upon the soil of the latter and an unauthorized invasion of the rights of the public to its navigation; and when such acts not only impair the navigation of a river, but at the same time affect the rights of an entire community or neighborhood or any considerable number of persons to the free use and enjoyment of their property, they constitute, however long continued, a public nuisance."

An injunction will issue against the defendant although others were engaged in the same wrongful act, and it was not found as a fact whether defendant's working alone materially contributed to the evi!. The right to continue this nuisance could not be acquired by custom or prescription.

Hobbs v. Amador & Seramento Canal Co., 66, 161 (1881). The owner of a mining claim may not work it so as either directly or indirectly to cover the land of his neighbor with mining débris, sand and gravel. An injunction was accordingly granted to restrain such an owner from discharging or dumping tailings or débris into the streams and trenches above plaintiff's land, which was subsequently modified to permit him to work his mine and use his supply of water to preserve his dam and other structures, so long as he should impound and restrain the coarse débris. It makes no difference, apparently, that the decision renders hydraulic mining by defendant impossible.

County of Yuba v. Cloke, 79, 239 (1889). The business of hydraulic mining is not in itself unlawful, or necessarily injurious to others, and the sale of water to be used in such business is lawful, and will not be enjoined on the ground that such business will be in fact so conducted as to work injury to others, unless the defendant is directly connected with the wrongful act complained of, -as by a knowledge that the water sold by him was to be used in a manner to injure others.

Colorado.

People ex rel. Wolpert v. Rogers, 12, 279 (1888). A complaint setting forth that the relators are owners of agricultural lands in certain counties dependent upon irrigation, and seeking to enjoin the operation of certain stamp mills, which polluted the waters of the stream from which the relators obtained their water, though its final determination may seriously affect either the agricultural or mining prosperity of four counties, tenders an issue of a private character and not of a public character, and the Supreme Court will not assume original jurisdiction thereof.

Connecticut.

Bushnell v. Proprietors of Ore Bed, 31, 150 (1862). The plaintiff had formerly conveyed to the defendants, an ore company, the right of washing their ore upon a small stream that ran through his land, and to discharge dirt upon his "meadow lot" lying below upon the stream. A great quantity of dirt accumulated upon the meadow lot, filling the bed of the stream and raising

the lot above the adjoining land, so that the dirt washed upon the lot spread, and was carried upon the plaintiff's pasture lot adjoining. The plaintiff owned this lot at the time the deed was given. Held, that the defendants were not liable for any damages to the pasture lot resulting naturally from the discharge of dirt upon the meadow lot. Palmour v. Mitchell, 69, 750 (1882). One who sold land

Georgia. on a creek for mining purposes, with full knowledge of the

use to which it was to be put, and consenting that the " tailings" from the mine should be drained off through the creek, and consequently through a reservoir which he had for operating a mill lower down the creek than the mine, could not complain if such drainage was used and his reservoir was injured thereby.

Satterfield v. Rowan, 83, 187 (1889). An upper riparian owner who, by building a dam and washing ores in a stream, renders it unfit for use by the lower owner and diminishes the flow of water, is liable for the damages caused thereby. It was pleaded in this case that the use of the stream made by the defendant was reasonable and sanetioned by the usage of the country, and that the stream was of more use and value to the defendant and all adjacent and subjacent owners for the purpose of washing ores, than to plaintiff and all subsequent riparian owners for the purpose to which he put it as alleged in his declaration, viz. as a farm and dwelling; the first of which seems to have been decided against defendant, no mention being made of the last. Edwards v. Allouez Mining Co., 38, 46 (1878). A man Michigan. bought for speculation certain bottom lands upon which large quantities of sand were being deposited by a stream which carried it down from a stamp mill which operated a copper mine. He tried to sell the lands for an amount from three to five times what they cost him, to the owners of the mill, but they declined to buy. He then prayed for an injunction to restrain the owners of the mill from casting sand on his land and polluting the stream. An injunction was refused, but the case was referred to a jury to assess the damages.

Montana.

Nelson v. O'Neal, 1, 284 (1871).

An owner of mining ground is entitled to the free use of the channel of a creek, to allow the water which comes down from above to flow away from his mining ground; but he has no right to fill the channel with tailings and débris, and let them flow down upon another's ground.

Mc Cauley v. McKeig, 8, 389 (1889). One who appropriates the water of a stream for the purpose of placer mining, will not be enjoined from diverting the water at the suit of another who subsequently appropriates it for purposes of irrigation. Nor will he be enjoined from running his tailings down the stream and into the plaintiff's ditch, when it was found by the jury that this was a necessary incident of placer mining, and that the plaintiff was not damaged thereby. "We are not to be understood as declaring that the owner of a placer mine may disregard the rights of others owning property adjacent to his; but the public policy of this Territory demands that a trifling, a nominal damage shall not be ground sufficient to destroy one of its leading industries. The laws of the United States, from which power the plaintiff obtains his right, granted to defendant the right to use

the water for placer mining purposes, and we think we have no power to deprive them of that right by enjoining him from doing that which is a necessary incident to the enjoyment thereof, certainly not at the request of one who is a subsequent purchaser from a common grantor." McCormick v. Horan, 81, 86 (1880). "The right of New York. an owner of lands through which a watercourse runs to have the same kept open, and to discharge therein the surface water which naturally flows thereto, is not limited to the drainage and discharge of surface water into the stream in the same precise manner as when the land was in a state of nature, and unchanged by cultivation or improvements." Such an owner, who excavated upon his land a quarry, into which was collected water and melting snow, which would otherwise have drained into the stream, had a right to pump it into the stream, although his so doing increased the flow of water to an amount greater than it would have been, the natural capacity of the stream being in this case sufficient to carry off the water without damage to the lower riparian owner.

Ohio.

Columbus & Hocking C. & I. Co. v. Tucker, 48, 41 (1891). If the owner of a coal mine situate on the bank of a stream intentionally deposits therein coal, dirt, slack and refuse, or intentionally deposits the same upon the banks so that it will be washed into the stream by natural agencies, he is liable to lower riparian owners for damage caused thereby by overflowing their land, filling up and polluting the stream. The intention may be inferred from the circumstances.

"Of course the right of the coal company, as a land owner, to the natural and full use of the soil, is measured by the same rule as that applied to the like right of the plaintiff. But the right it insists upon is something different from the natural and ordinary use of the soil. While not an unusual one perhaps with those engaged in the same business in the locality, it is an exceptional rather than a common and ordinary one. It is not incidental to the use of the soil itself, as such; indeed, is destructive of what is the most common use of the soil, viz. for agricultural purposes."

The acts in question cannot be justified on the ground of custom, or that they are necessary to the successful conduct of defendant's business. "If the injury complained of were merely a fanciful wrong, or produced simply personal discomfort, such as any dweller in a tɔwn is necessarily subject to by reason of the operations of trade which may be there carried on, and which are actually necessary, not only for the enjoyment of property, but for the benefit of the inhabitants of the town and the public at large, there might be no real ground of em plaint; but where the result of the acts of one on his own land is a direct and material injury to the property and property rights of an other, a very different question arises, and in such cases the maxim sic utere tuo ut alienum non ladas applies." Besides, the acts complained of here are, by statute in Ohio, a nuisance. Act April 15, 1857; Act March 27, 1875; Rev. Stats. 6925.

Pennsylvania.

New Boston C. & M. Co. v. Pottsville Water Co., 54, 164 (1867). A water company filed a bill for an injunction against a mining company, to restrain them from polluting the

water of a stream from which the former supplied the town of Pottsville. The evidence not being clear that the water, where taken from the stream by the water company, was affected by the drainage from the mines, it was error to grant a preliminary injunction.

Little Schuylkill N. R. & C. Co. v. Richards, 57, 142 (1868). dam was filled with coal dirt washed down from deposits made on the lands of a mining company, as well as on the lands of others unconnected therewith. The court charged that if at the time defendants were throwing coal dirt into the stream the same thing was being done at other collieries, and they knew it, they were liable for the combined result of all the deposits. This was error. The defendants' tort, in the absence of concerted action with the others, was several, and the difficulty of determining what part of the dirt in the dam came from defendants' mine would not make them liable for the negligence of others.

Brown v. Torrence, 88, 186 (1878). If a stream of water passing through a tract of land is polluted and rendered unfit for use by reason of the discharge of refuse from the mines beneath the land, the surface owner may recover damages therefor from the mine owner.

Pennsylvania Coal Co. v. Sanderson, 113, 126 (1886), overruling s. c. 86, 401, and 94, 302. One operating a coal mine in the ordinary and usual manner may, upon his own lands, drain or pump the water from his mine to the surface, whence it may drain into a stream which forms the natural drainage of the basin in which the mine is situated, although the quantity of the water of the stream may thereby be increased, and its quality so affected as to render it totally unfit for use for domestic purposes by the lower riparian owners.

The use and enjoyment of a stream of pure water for domestic purposes by the lower riparian owners who purchased their land, built their houses, and laid out their grounds before the opening of the coal mine, the acidulated water from which rendered the stream entirely useless for domestic purposes, must, ex necessitate, give way to the interests of the community, in order to permit the development of the natural resources of the country and to make possible the prosecution of the lawful business of mining coal.

"It will be observed that the defendants have done nothing to change the character of the water, or to diminish its purity, save what results from the natural use and enjoyment of their own property. They have brought nothing on to the land artificially. The water as it is poured into Meadow Brook, is the water which the mine naturally discharges; its impurity arises from natural, not artificial causes. The mine cannot, of course, be operated elsewhere than where the coal is naturally found, and the discharge is a necessary incident to the mining of it.

"It must be conceded, we think, that every man is entitled to the ordinary and natural use and enjoyment of his property."

"The defendants, being the owners of the land, have a right to mine the coal. It may be stated, as a general proposition, that every man has the right to the natural use and enjoyment of his own property, and if whilst lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is

damnum absque injuria, for the rightful use of one's own land may cause damage to another without any legal wrong.

Mining in the ordinary and usual form is the natural user of coal lands; they are, for the most part, unfit for any other use. 'It is established,' says Cotton, L. J., in West Cumberland Iron Co. v. Kenyon, L. R. 11 Ch. Div. 773, that taking out mineral is a natural use of mining property, and that no adjoining proprietor can complain of the result of careful, proper mining operations.' In the same case, Brett, L. J., says: The cases have decided that where that maxim (sic utere tuo ut alienum non lædas) is applied to landed property, it is subject to a certain modification; it being necessary for the plaintiff to show, not only that he has sustained damage, but that the defendant has caused it by going beyond what is necessary in order to enable him to have the natural use of his own land.' L. R. 11 Ch. Div. 787.

"The right to mine coal is not a nuisance in itself. It is, as we have said, a right incident to the ownership of coal property, and when exercised in the ordinary manner, and with due care, the owner cannot be held for permitting the natural flow of mine water over his own land, into the watercourse, by means of which the natural drainage of the country is effected.

"There are, it is well known, percolations of mine water into all mines; whether the mine be operated by tunnel, slope or shaft, water will accumulate, and, unless it can be discharged, mining must cease. The discharge of this acidulated water is practically a condition upon which the ordinary use and enjoyment of coal lands depends; the discharge of the water is therefore part and parcel of the process of mining, and as it can only be effected through natural channels, the denial of this right must inevitably produce results of a most serious character to this, the leading industrial interest of the State.

"The defendants were engaged in a perfectly lawful business, in which they had made large expenditures, and in which the interests of the entire community were concerned; they were at liberty to carry on that business in the ordinary way, and were not, while so doing, accountable for consequences which they could not control; as the mining operations went on, the water by the force of gravity ran out of the drifts and found its way over the defendants' own land to the Meadow Brook. It is clear that for the consequences of this flow, which by the mere force of gravity, naturally, and without any fault of the defendants, carried the water into the brook and thence to the plaintiff's pond, there could be no responsibility as damages on the part of the defendants."

"But it does not appear from any evidence in this cause, that the mine was conducted by the defendant, in any but the ordinary and usual mode of mining in this country. The deeper strata can only be reached by shaft, and no shaft can be worked until the water is withdrawn. A drift is in some sense an artificial opening in the land and accumulates and discharges water in a greater volume and extent than would otherwise result from purely natural causes, yet mining by drift has, as we have seen, been held to be a natural user of the land. So, too, we think, according to the present practice of mining, the working of the lower strata by shaft, in the usual and ordinary way, must he considered the natural user of the land for the taking out of the coal,