The plaintiff brought this action to enjoin defendants from interfering with the said •ditch, flume, and pipe line, or obstructing or diverting the waters flowing through the same. The defendants allege generally the right to the exclusive use and ownership of all of the waters-of said Chititu, Rex, and. White creeks, by reasons of their appropriation and use thereof upon the said mining claims owned by them.
*58The evidence shows that since about the year-1906 the defendants have conducted hydraulic mining operations upon their claims, from about 4 to 10, Chititu, and claims 2 to 8, inclusive, on Rex; also upon the Carvey bench on the left limit of claims 2 and 3 on Rex.
There was some testimony offered and received, tending to show the local custom of miners on said three creeks, with reference to the use of the waters thereof, as it reached each individual claim, and also as to the carrying of ditch, flume, and pipe lines, telephone lines, etc., across the claims of third persons; but I am unable to see that the testimony with reference to custom throws much, if any, light upon the controversy here. It narrows down to a very simple question: Was the plaintiff the prior appropriator of the waters of White creek, by virtue of the diversion and use thereof by his layman, Schlosser, in 1915, followed by plaintiff’s notice of location of 2,600 inches of the waters thereof, posted on the ground in November, 1915, and alsb followed up by the actual diversion thereof in his ditch, flume, and pipe line in the spring of 1916, and his putting the same to the beneficial use of placer mining on his claims No. 1 Rex and No. 11 Chititu, and the bench claims adjoining, in the year 1916?
The defendants claim they are entitled to the use of sqid waters of White creek on the said'claims, Nos. 1, 2, 3, arid 4 White, and they attempt to establish the fact that they had diverted the waters of said creek in mining said ground, or some portions thereof.
The only evidence of the actual use of the waters of said White creek on any of0the said four claims now owned by defendant was in the year 1903. Before the said claims were owned by defendant, a lay was let on No. 3 White in 1903 to one Mitchell, who put up a few sluice boxes and shoveled in the dirt, just erecting enough of a dam or obstruction to throw the water into the sluice boxes. After working two or three weeks, they found that there was no sufficient pay, and they threw up the lay and abandoned it. There is no evidence of any work having been done on one of those claims on White creek since that time, and there is no evidence that the same have any value for mining purposes. I think the contrary is shown by the evidence in this case, at least, that they have no value for mining purposes. The *59fact that they have been held for 14 years and not a dollar has ever been taken out of them should be convincing evidence of their lack of value.
There is considerable evidence in the case on the part of the defendant tending to show that the plaintiff recognized the property right of the defendant Andrus in and to the waters of said White creek, for use upon his placer claims Nos. 1, 2, 3 and 4 White creek, notwithstanding that the said Kernan had actually used the waters of said White creek for many years upon his ground No. 1 Rex and No. 11 Chititu. The plaintiff denies that he ever recognized the prior right of said Andrus to the waters of said White creek.'
There is considerable contradictory testimony with reference to this question and being in the nature of admissions, ought to be viewed with caution. It is more likely that none of the parties felt thoroughly satisfied as to the exact legal status of the matter, and up until the actual diversion of the water by Kernan or his layman in 1915 the same had not been appropriated by any one, or put to any beneficial use, except by the plaintiff, Kernan, himself on his claims No. 1 Rex and No. 11 Chititu, except as above noted for a little prospecting in the year 1903 on No. 3 White.
It would not seem as though the legal right of either party could be fixed or established by claims made or opinions expressed by either party, as the right depends upon the prior appropriation, actual diversion, and application to a beneficial use.
Both parties have brought in a number of side issues and cited a good deal of law on questions that seem to me are not necessary to be considered in this case. The issue is a very simple one, and I think this court is controlled by the decision of the Circuit Court of Appeals for the Ninth Circuit in the case of Van Dyke v. Midnight Sun Mining & Ditch Co., 177 Fed. 85, 100 C. C. A. 503. The second section of the syllabus reads as follows:
"Tlie common-law doctrine of riparian rights does not apply to the Seward Peninsula in Alaska; but the waters of nonnavigable streams on public lands are subject to appropriation for mining, agricultural, and other useful purposes, and the locator of a mining claim on such a stream acquires no riparian rights by reason of such location as against a prior appropriator. He is, however, entitled to the continued use of so much water as he has been di*60verting and applying to a beneficial use as against a subsequent appropriator; there being no law of the territory requiring posting or recording of the notices of such appropriation to give him a vested right thereto.”
There is no satisfactory evidence here that the locator of a mining claim on the stream, to wit, the defendant Andrus, ever appropriated the waters of White creek by diverting and applying the same to a beneficial use, as against the subsequent appropriator Kernan. See, also, the case of McFarland et al. v. Alaska Perseverance Mining Co., 3 Alaska, 308, where Judge Wickersham, after a full and able discussion of the question of water rights in Alaska, says, on page 332:
“The mere location of a placer mine crossed by a nonnavigable stream, in Alaska, does not vest the locator with such riparian ownership in the waters as to compel a court of equity to enjoin their subsequent appropriation and diversion for mining purposes. This conclusion leaves but the single question of priority of right between plaintiffs and defendant, based upon their respective appropriations of the waters of Lurvey creek; to be determined.”
The true inwardness of this case seems to arise from the fact that the plaintiff and defendant Andrus, who are the only mining operators on said three streams, instead of getting together in a friendly and common-sense way, have been too much engrossed in insisting upon their own supposed rights. If they proceed in this attitude toward each other, they will probably both be successful in hampering and obstructing and causing each other great inconvenience, delay, and expense. It is axiomatic that two bodies cannot occupy the same space at the same time. It seems apparent that one is bent on forcing the other in one matter in order-to gain a supposed advantage in another matter. Kernan’s ownership of claims No. 1 Rex and No. 11 Chititu is no doubt strategic, and it is quite evident, from the testimony and a little reading between the lines, that the defendant Andrus is more concerned in taking a head of water from Rex or Chititu on Kernan’s ground, No. 1 Rex or Nó.- 11 Chititu (or what amounts to the same thing, taking a head above Rex gulch, further up, and carrying it across Kernan’s said two claims), in order that he may get a pipe head to work claims Nos. 8, 9, and 10 Chititu, with a sufficient fall or pressure, than he is about the waters of White creek.
*61Kernan, by reason of his actual use and appropriation of said waters on his said claims, No. 1 Rex and No. 11 Chititu, is in position to prevent Andrus from doing this. The defendant Andrus has operated a large plant successfully on Chititu creek, and I think the evidence shows that he probably has at least two years’ work left on claims below No. 9 Chititu. He is also operating extensively on Rex creek' and the Carvey bench, using all the waters of Rex creek. He thus has two hydraulic plants in operation, one on Rex, no doubt dumping more or less débris and tailings on Kernan’s claims, while he complains of Kernan dumping débris and tailings upon his claims below No. 11 Chititu. If Andrus’ contention could be sustained here, he would be in a position where he could operate three hydraulic plants, and Kernan could not operate any. This much is said for the true inwardness of the situation. Of course, if each party insists upon his naked' legal rights, they can find plenty to .fall out about, and interfere and obstruct each other in many ways.
In view of the situation here, I venture to make the suggestion that these parties ought to meet each other in a spirit free from personal antagonism or desire to overreach; that they ought to and could make a reasonable and satisfactory agreement as to their course of operating. I believe a fair and equitable adjustment Could be arrived at by the exercise of a little forebearance and concession.
Plaintiff was permitted, over the objection of defendants, to amend his complaint and ask that commissioners be appointed to condemn a right of way for plaintiff’s ditch, flume, and pipe line across the defendants’ claims Nos. 1, 2, 3, and 4 White Gulch. While from the evidence produced in this case the said four claims are not shown to be of any particular value, still I take it that the defendant is entitled as a matter of right to have testimony taken on the question of value in proper condemnation proceedings, and there is some doubt, too, as to plaintiff’s right to maintain that proceeding in this action, which was brought only for the purpose of enjoining the defendant from interfering with his ditch, flume, or pipe line. 4
The said amendment, therefore, in so far as it seeks to condemn a right of way across the said four placer claims *62of defendant, will be stricken out, and the plaintiff relegated to proper proceedings to condemn said right of way. This is merely one instance where the parties may save the expense and trouble and delay of a lawsuit by agreement between themselves.
The plaintiff is entitled to the injunction prayed for. Findings and decree may 'be prepared accordingly.
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