Jordan v. Chambers

<p>Appeal, No. 263, Jan. T., 1896, by plaintiffs, from decree of C. P. Lackawanna Co., Sept. T., 1894, No. 5, on bill in equity.</p> <p>Bill in equity praying for an injunction to restrain the defendants from mining coal under certain lands claimed by plaintiffs. Before Gunster, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned■ was in dismissing bill.</p> <p>It is well settled by numerous authorities both in this state and in England that, where a severance of the surface from the underlying strata of coal or other minerals has taken place, no possession of the surface constitutes any possession of the underlying strata: Plummer v. Hillside Coal & Iron Co., 160 Pa. 483 Kingsley y. Hillside C. & I. Co., 144 Pa. 618; 1 Am. & Eng. Eney. of Law, 262; Putnam Free School v. Fisher, 34 Me. 172; Caldwell y. Copeland, 37 Pa. 431.</p> <p>Title to any of the minerals, quite distinct from the title to the surface, may be shown by documentary evidence; in the absence of such evidence, or in opposition to it, title to them may be made out by proof of possession and acts of ownership under the statute of limitations. The acts of ownership, however, which constitute possession and confer title must be distinct from such as are exercised over the surface: Tyrwhitt v. Wynne, 2 Barn. & Aid. 554; Cullen v. Rich, Buller, N. P. 102; Rich v. Johnson, 2 Strange, 1142; Caldwell v. Copeland, 87 Pa. 427; Armstrong v. Caldwell, 53 Pa. 284; MacSwinney on Mines, 526; Tliew v. Wingate, 10 B. & S. 714; McDonnell v. McKinty, 30 Ir. L. R. 514; Dartmouth v. Spittle, 19 W. R. 445 ; Ashton v. Stock, L. R. 6 Ch. Div. 726; Seaman y. Yawdrey, 16 Yes. 392; Barnes v. Mawson, 1 M. & Sel. 84.</p> <p>To constitute a continuous possession of mines, it is only necessary that the operations be prosecuted as continuously as the nature of the business and the custom of the country permit: Stephenson y. Wilson, 50 Wis. 95; Wilson v. Henry, 40 Wis. 594.</p> <p>This was an ejectmen

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J. entered May 28, 1913, upon findings in favor of the defendant, in an action in ejectment, tried to the court.</p>

<p>APPEAL from District Court, Ada County.</p> <p>An action to establish a right to the possession of a right of way over which to divert water cannot be maintained exclusive of the fight to divert water, especially as against one who has such right to divert. {Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453.) There is only one way, so far as this controversy is concerned, to acquire the right to the possession of a right of way. over the public domain and that is as follows: “Whenever, by priority of possession, rights to the use of water for . . . agricultural .... purposes, have vested and accrued; .... the right of way for the construction of ... . canals .... is acknowledged and confirmed.” (17. S. Rev. Stats., sec. 2339.)</p> <p>Possessory rights to ditches and possessory rights to water may each have an existence independent of the other. That a person may convey a water right, reserving the ditch, or convey a ditch independent of the right to the use of the water accustomed to flow therein, is, we think, clearly within reason. A ditch is itself land. (Kinney on Irrigation, see. 224, and cases cited in note; Reed v. Spicer, 27 Cal. 58.) Interest in water ditch is real estate, and can only be transferred by deed, prescription or condemnation. (Burnham v. Freeman, 11 Colo. 601, 19 Pac. 761; Smith v. O’Hara, 41 Cal. 371.) For a case recognizing ownership of ditch in one person and ownership of watqp running therein in another, see ' Clifford v. Larrien (Ariz.), 11 Pac. 397. A ditch constructed on unoccupied public lands of the United States is held by grant, and the owner of such ditch does not forfeit his right thereto merely by nonuser. (Welch v. Garrett, ante, p. 639, 51 Pac. 405.)</p>