
    164 F. 657
    THORNDYKE et al. v. ALASKA PERSEVERANCE MINING CO.
    No. 1,540.
    Circuit Court of Appeals Ninth Circuit.
    Oct. 5, 1908.
    Rehearing denied November 6, 1908.
    
      G. C. Israel, J. A. Hellenthal, L. R. Gillette, Lorenzo. S. B. Sawyer, R. F. Laffoon, and Winn & Burton, for appellants.
    Malony & Cobb, W. C. Sharpstein, and Frank M. Stone, for appellee.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   ROSS, Circuit Judge

(after stating the facts as above). From the pleadings of the parties we think it clear that no question of riparian rights arises in the case, all of them basing their alleged rights on their alleged respective appropriations of the public waters for mining, and other purposes connected therewith.

The exhibits and other evidence in the case show that Silver Bow Basin is a small pocket surrounded by high mountains, upon some of which are located the defendant’s lode mining claims — its mill, mill sites, buildings, and other improvements of that character being situated in the basin. Above the basin Lurvey creek forks, what is known as North or East Lurvey creek coming into the main stream at a point on what is now the defendant’s Solo lode claim. It appears that in this basin placer ground was worked by miners many years before the rights of either party to this controversy were initiated, and that in their operations those former miners used the water of both branches of Lurvey creek, bringing that from the North or East creek to the main stream by means of a ditch or flume.

The trial court found, among other things, that on and prior to July 2, 1897, Joseph T. Gilbert was the owner, by location and purchase, of a group of seven lode mining claims, called respectively the “Perseverance,” “Alta,” “Jumbo,” “Rimrock,” “Perseverance No. 2,” “Alta No. 2,” and “Jumbo No. 2,” and a group of four mill sites, namely, the Ajax, Rimrock, Alta, and Perseverance, all situated in Silver Bow Basin; that the lode claims lie high upon the mountains, and the mill sites in the valley below; that Lurvey creek flows over and across that group of claims, and tumbles down the mountain and unites with Gold creek within the boundaries of the Ajax mill site; that the ground over which Lurvey creek flowed on its course from the lode claims mentioned to the said mill sites was, on the 2d day of July, 1897, unappropriated and unoccupied; that on said 2d day of July, 1897, the said Gilbert, at a point on Lurvey creek where was the dam of the old miners, and at an altitude of about 800 feet above the mill site, located what is called in the record the defendant’s Lurvey creek water right, claiming 4,000 miner’s inches of the water’ of the said creek, and located and surveyed the right of way for a ditch, flume, and pipe line from the said old dam, across unappropriated government land, to said mill sites below, and posted his location notice at the dam, on land at the time unappropriated and unpossessed by any one, and on the 6th day of July, 1897, recorded the said location notice with the recorder of the district; that at the time of the posting of that notice and of its recordation the waters of Lurvey creek were unappropriated, and were so appropriated by Gilbert for use in the development and operation of his said mining properties, to be conveyed to the mines and mill sites by ditch, flume, and pipe, for power and other purposes; that immediately thereafter Gilbert commenced the development of his said mining claims by-driving tunnels and crosscuts at what is now called the “Gilbert Tunnel and upper workings,” and at the same time commenced the reconstruction of the old dam and the old ditch referred to as having been used by the former miners, and continued such development during the working season of each year thereafter until the close of 1899, when he completed the ditch to the penstock above the said mill site, and excavated for the pipe line from the penstock to the said mill site, and as early as October, 1897, had the water flowing in the said ditch and turned out at the old spillway and over the “Little Falls” which are about midway between the mill sites and the intake on Lurvey creek; that Gilbert appropriated the said water in good faith and for the purpose of applying the same for the beneficial uses stated, and continued actual work on his said mines and water rights and locations, and prosecuted the same with diligence to the year 1901, at which time he sold his said mines, mill sites, water, water rights, and all improvements made thereon to one W. J. Southerland under a contract or option to purchase, who thereafter sold and assigned the option and contract to purchase to the defendant company, which company entered into possession of the whole of the said properties, water rights, and improvements in August, 1901, and thereafter complied with all the terms and conditions of the contract of purchase, and received from Gilbert a good and sufficient conveyance of all of the said mining properties, water, water rights, and improvements, since which time the defendant has been the owner thereof; that upon the defendant’s acquiring the properties in August, 1901, it commenced to repair the ditch and dam, and laid out and commenced the driving of a tunnel in and through the said mining properties known as the “Alexander Tunnel,” having its entrance about 275 feet above the said mill site, and extended the tunnel about 2,550 feet into the mountain, cutting the ore bodies at a depth of about 1,000 feet below the Gilbert tunnel, and far below the apex of the ore bodies; that in 1902, and while the defendant was driving the Alexander tunnel, the water from Lurvey creek was carried through the said ditch, spilled over the spillway into a canyon below the aforesaid “Little Falls,” where it was caught and conveyed by pipe to the blacksmith shop of the defendant company and used therein, and in 1903, during the development of the said mining claims and water rights, the said water was extended to and used in the boarding house of the defendant company, and down an air shaft of the Alexander tunnel for the purpose of ventilation; that in the latter part of April, and in the early part of May, 1905, the defendant commenced the excavating for the foundation of a large boarding house, crusher house, compressor house, and for a 100-stamp mill, the ground being laid out for a 300-stamp mill, and also of a trench for the pipe line from the mill to the penstock at the old ditch, and continued such work with reasonable diligence, and on August 1, 1905, a new boarding house was completed and in use by the defendant, with the said water 'from Lurvey creek therein for domestic and fire purposes, and a foundation for the crusher house, and the trench for ■the pipe line were completed, and the material on the ground for the construction of the crusher house and the new flume from the dam from the penstock sluice, and much of the material for the constructed of the mill; that by the latter part of October, 1905, the pipe line had been laid from the mill to the south corner of what is known as the “Perseverance Placer Claim,” a new flume completed from both the main and east branches of Lurvey creek to the penstock at the head of the pipe line, and the said water turned into it and discharged at the spillway and passed down into the ravine, as it had done theretofore, and from the old ditch, where it was gathered up for said uses; that in April and May, 1906, the pipe line was completed to the penstock, and the said water turned into it, and used at the mill and for hydraulic purposes, and during that year a mill was completed of sufficient size and dimensions to accommodate 100 stamps, and to this extent the scheme and plan of development laid out and started by the said Gilbert in 1897 was completed; that during the period of time mentioned government patents were issued to all of the aforesaid mining property, together with certain other properties located by the defendant, to wit, Perseverance No. 5, Perseverance No. 6, and Ethel fraction lode claims, and the Perseverance placer, all contiguous to the before-mentioned properties deeded to the defendant by Gilbert; that during the same period of time the defendant company completed an upraise from a point near the end of the Alexander tunnel a vertical distance of 920 feet, and ran many drifts and levels and completed other underground works, all for the successful mining and operation of the said property, at a cost in excess of $500,000; that on or about June 19, 1905, and while the defendant company was so actively engaged in its development work, the plaintiff V. McFarland located the B. C. fraction placer claim alongside the Perseverance placer, a small part of which B. C. fraction placer was unoccupied ground, and over which Lurvey creek flows for about 200 feet before entering the said Perseverance placer grounds; that all of the water so located and claimed by the defendant company and not used by it during the said period of development continued to flow down Lurvey creek and across said B. C. fraction claim located by the said McFarland, and that under his claim of 1,000 miner’s inches of the waters of the said Lurvey creek he did on the 26th day of August, 1905, commence' the construction of a dam and intake and flume, by means of which he proceeded to do some ground sluicing on ground embraced within a prior placer location claimed by the defendant company, called the “Martin Lode Claim,” over which the B. C. Fraction lapped, but that no clean-up was made and no gold was obtained therefrom of any conséquence; that there is only from one-eighth to one-half of an acre of the B. C. fraction claim that is not in dispute, and that could be successfully worked or sluiced by the water taken from Lurvey creek at the plaintiffs’ intake; that the location and attempted appropriation of the said water by the plaintiffs was not in good faith or for any beneficial purpose, and was not intended to be used by them for any such purpose.

Should it be conceded that Gilbert did not follow up his appropriation by work with sufficient diligence to have enabled him to hold the water as against any 'adverse appropriation made prior to his sale to the defendant, it would not help the plaintiffs, since the appropriation under which they claim was not made until July 24, 1905 — several years after the defendant company acquired all of the properties from Gilbert. Certainly the evidence affords no just ground for saying that from the time of the defendant’s purchase in 1903 it did not prosecute the work diligently. It shows that the defendant got many of its claims, and one or more of its mill sites, patented by the government, and that from the very inception of the undertaking the plan was to develop and operate all of them as one property; that it drove one tunnel 2,550 feet into the mountain to cut its various ledges, made one upraise of 920 feet, built one 50-stamp mill, with room and building space enough for an additional 50 stamps; that it built the necessary houses for its large operations, cleaned out the ditches, repaired the flumes, excavated for and. constructed pipe lines, and continuously used by means of them, in the progress of the work, such of its appropriated waters of Lurvey creek as were from time to time needed. Evidence was also given on behalf of the defendant to the effect that all of the 4,000 inches appropriated by its assignor, Gilbert, are needed by the company for power and other necessary uses in its said operations, and that in the aggregate it and its assignors have already expended in the establishment and development of the property about $500,000.

Whatever conflict there is in the evidence was resolved against the plaintiffs by the judge of the court below, whose findings are in cases like the present always to be taken as “presumptively correct, and unless an obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence, the findings should not be disturbed.” North American Exploration Co. v. Adams, 104 F. 404, 45 C.C.A. 185; Tilghman v. Proctor, 125 U.S. 136, 8 S.Ct. 894, 31 L.Ed. 664; Kimberly v. Arms, 129 U.S. 512, 9 S.Ct. 355, 32 L.Ed. 764; Furrer v. Ferris, 145 U.S. 134, 12 S.Ct. 821, 36 L.Ed. 649. So far from finding any such mistake in the present case, we are of the opinion that the evidence clearly justified the findings made by the court below.

The judgment is affirmed.  