MINING REPORTS.

DERRY V. ROSS ET AL.

(5 Colorado, 295. Supreme Court, 1881.)

Cutting ditch enjoined. Repeatedly cutting a mining ditch is a destructive trespass liable to be enjoined in the exercise of the power of a court of equity.

Abandonment, a legal issue. Where abandonment is averred and denied, the issue raised is an issue at law; and where such an issue is framed in an injunction case, final decree should be deferred until such issue be decided in a court of law; but if the parties proceed to trial without objection before the chancellor upon such issue, his decree can not be questioned for want of jurisdiction. The rule that consent can not give jurisdiction, does not apply where the parties and subject-matter are both within the jurisdiction.

Abandonment divests title. The possessory title to a mining claim may be divested by abandonment as well as by gift or sale.

Question of intent. Abandonment is a matter of intention and operates in

stanter.

Fesertion equivalent to abandonment. When a miner gives up his claim and goes away from it, without any intention of repossessing it, and regardless of what may become of it, or who may appropriate it, an abandonment takes place, and the property reverts to its original status as part of the unoccupied public domain; it is then publici juris, and open to location to the first comer. No subsequent sale by the former locator, in such case, after other rights have intervened, will convey any right or title to the grantee.

MILLER & CLOUGH and A. S. WESTON, for appellant.

THOS. MACON; MARKHAM, PATTERSON, THOMAS and CAMPBELL, for appellees.

Appeal from District Court of Lake county.

The opinion states the facts.

BECK, J. A bill was filed in the district court of Lake county, by the appellees, on the 12th day of August, 1876, setting up, that they were in possession of a certain placer mine and ditch, in Willow gulch in that county, which they had taken possession of and appropriated as abandoned property. That the mine was originally located, and the ditch constructed by Wesley Willett, James Willett and Samuel Hammett, in the year 1866, and that these parties had left and abandoned the property in 1872, and allowed it to become in a ruinous. condition; that the complainants finding the premises abandoned, had entered into possession, re-located the property, filed their location certificate in the recorder's office of Lake county, put the property in repair, and commenced mining operations; that they continued to work the mine in a profitable manner, using the water flowing through the ditch for the purpose, until defendant, Derry, cut the ditch and diverted the water so as to compel them to suspend mining operations. Complainants entered into possession in Angust, 1875, and filed their location certificate for record on the 26th day of October following. The allegation in the bill as transcribed into the record is, that they took possession in August, 1876; but other portions of the bill and record, including the answer, show that the true date is August, 1875. The bill alleges that the appellant, Derry, made no use of the water of the ditch, but wantonly and maliciously at different times, cut the ditch,and allowed the water to flow out and run to waste; that he first cut the ditch on June 1st, 1876, and had since repeatedly cut and broken it, and threatened to continue these wrongful acts. It alleged the damages to be irreparable, and the defendant insolvent. The prayer was for a temporary injunction, restraining the defendant from the acts complained of, and that upon a final hearing, the injunction be made perpetual.

The temporary writ was granted, and one year afterwards, August 15, 1877, the appellant filed a demurrer to the bill, and at the same time a motion to dissolve the injunction. The bill was amended, and thereupon appellant filed an answer, setting up title in himself to the ditch and water. Exceptions being made and sustained to the answer, he filed an amended answer, denying the complainants' title to ditch and water, and claiming title in himself by prior appropriation of the water, and by

purchase of the ditch from Wesley Willett, one of the original locators. To the answer a replication was filed, and the cause was then referred to a Master in Chancery to take testimony. Upon filing of the Master's report of testimony, the parties went into a final hearing of the cause upon the merits before the court; the court found the allegations of the bill to be true; that complainants were the owners of the property, and a decree was entered up in their favor, perpetually enjoining the appellees from interfering with the ditch. The principal errors assigned are, that the court did not have jurisdiction to try the cause and pronounce the decree, and that the decree was not warranted by the testimony.

We have no hesitation in saying that the allegations of the bill justified the issuing of the temporary writ of injunction. It is a common practice for courts of equity to assume jurisdiction of a cause of this nature, for the purpose of restraining acts of trespass to mining property and water rights, where the character and extent of the wrongful acts committed render the injury irremediable, or where an action at law would not afford an adequate remedy, by reason of the insolvency of the defendant. 2 Story's Eq. Jur., Secs. 928, 929; Irwin v. Davidson, 3 Iredell's Eq. Cases, 311; United States v. Parrott, 1 McAllister, C. C. 271; Atchison v. Peterson, 20 Wall. 515. It is urged that the court below, sitting as a court of equity, had no jurisdiction to try the question of title, which was the main issue presented by the pleadings.

It is undoubtedly true that the ownership of the ditch and water was a question of legal right; when this issue was presented, the court might very properly have refused to proceed further until that issue should have been determined in an action at law. No objection, however, appears to have been raised to the jurisdiction, and both parties voluntarily submitted to a trial of this issue before the court. Can the question of jurisdiction be now raised, for the first time, upon this appeal?

The legal maxim, that consent can not confer jurisdiction, is mainly applicable to courts of special and limited powers. The jurisdiction of such courts can not be extended by consent beyond the limit of the powers granted. Consent of parties would not authorize a justice of the peace to issue a writ of

injunction, or to try and sentence a prisoner for the crime of arson or murder. Mr. Sedgwick, in his work upon the Construction of Statutory and Constitutional Law, p. 359, illustrates the proposition in this wise: "Thus, where an appeal is taken in a cause not appealable, or to a court not having jurisdiction, it is not in the power of the parties to confer jurisdiction by waiving all objections."

The maxim applies with equal force to a court of equity, where the subject-matter of the litigation is wholly outside the pale of equity jurisdiction, and can not be brought within it, either incidentally or by the advent of circumstances.

It is the province of courts of equity to take cognizance of matters of account, trust, fraud, accident and mistake. They have concurrent jurisdiction with courts of law, where the latter courts, although courts of general jurisdiction, can not give adequate relief, or, under the actual circumstances of the case, can give no relief at all; and, according to the classification of Mr. Story, and some other authors of works upon equity jurisprudence, they have also auxiliary or supplemental jurisdiction. As remarked in the case of Miller v. Furse, Bailey's Ch. R., 181, with very few exceptions there is no question of civil rights in matters of property that may not come within the jurisdiction of a court of equity.

Criminal matters, however, are wholly outside of equity powers, and no consent would confer on such court jurisdiction. to try and punish persons for criminal offenses. Here is a palpable defect of jurisdiction, incapable of being cured, and if asserted, would be usurpation, and the proceeding a nullity.

It is not the province of a court of equity to try causes where the relief prayed for is an award of damages, which can only be properly ascertained by the verdict of a jury; nor is it the province of such court to try legal titles. When, therefore, such issues arise in the progress of a cause, if the court does not of its own motion remit the parties to an action at law, it is the privilege of the parties litigant to object to further proceedings in equity, until the legal issues are determined before. a proper tribunal. 1 Story's Eq. Jur., Sec. 72; 2 Story's Eq. Jur., Sec. 925d; Carlisle v. Cooper, 6 C. E. Greene, 576; Gilbert's History and Practice of the Court of Chancery, p. 51. If the subject-matter of litigation be outside the pale of