These instructions embrace the entire question involved, and submit the whole case fairly to the consideration of the jury. Under them the jury were at liberty to find a failure of the plaintiff to comply with the mining rules and usages of the Gold Hill district, or that he had absolutely abandoned the claim, and upon the finding of either fact, their verdict would have been for the defendant. In this view of the case the defendant has no reason to complain of the modifications of, or the refusal of the court to give the other instructions subsequently asked.

The sixth instruction asked by the defendant is not law, and was properly refused. A party who insists upon a forfeiture or abandonment, and relies thereon to build up a right in himself to the thing, franchise or easement forfeited or abandoned, is, upon first principles, bound to establish the fact or facts upon which his asserted claim of right depends.

It is not necessary to notice the instruction further in detail. There is some obscurity in a portion of the instruction given by the court below, in place of the seventh instruction asked by the defendant; but, in our opinion, this could not have in anywise affected or influenced the verdict. So far as the real question in controversy is concerned, it was fairly submitted under the principles of law relating to the loss or abandonment of a mining claim, as enunciated by this court at the present term, in the case of Mallett against the same defendant, and also in the case of St. John v. Kidd, 26 Cal. 263. The judgment of the court below is accordingly affirmed.

BEATTY, J., having been interested as counsel in a similar case against the Uncle Sam Company, did not participate in the hearing of this cause.

Judgment affirmed.

DOUGHERTY ET AL. V. CREARY ET AL.

(30 Cal., 290. Supreme Court, 1866.)

Novelty-Equity. A court of equity, acknowledges and adapts itself to, the novelties which arise from the diversified transactions of men. Abandonment of tailings and water. Water and tailings allowed to flow from a flume and abandoned, may be appropriated; but no obligation.

rests upon parties who have so abandoned their water and tailings to continue so to do, even if persons below have, at expense, erected works to catch and appropriate such water and tailings.

Co-tenants, working a mine, are partners.

The majority in interest, and not the majority of persons, has the right of control in the working of claims where all parties can not agree. Equity. The abuse of such right affords grounds for relief in equity.

HATCH & MCQUAIDE & GEORGE CADWALADER, for appellants. W. C. BELCHER & J. O. GOODWIN, for respondents.

Appeal from the District Court of Yuba County, Tenth Judicial District.

The opinion states the facts.

By the Court, CURREY, C. J.

The plaintiffs and defendants are the owners of a valuable mining claim at Sucker Flat in Yuba county, known as the "Blue Point Claim," connected with which is a flume known as the "Blue Point Flume" of about seven hundred feet in length, extending through and from such claim toward the Yuba river. The same parties also own this flume. The undivided interests of the several persons constituting the parties to this action in said claim and flume are as follows: The plaintiffs, Dougherty and Lahey, each own one-seventh; the plaintiffs Beatty and Whalen jointly own one-seventh; the defendant Creary owns three-sevenths and the defendant Ackley owns one-seventh; and these several persons, at the time this action was commenced, had been working the claim and using the flume for the purpose for more than a year, and they and those under whom they hold the property had been carrying on the mining business there and using the flume in aid of the work for more than three years before then. Connected with the Blue Point Flume, at the lowest end of it, is another known as the "Cheek and Ackley Flume," extending from the point of connection toward the Yuba River about seven hundred feet, of which the same persons, except Beatty and Whalen, were the owners at the commencement of this suit, and for three years before then had been the owners in the following undivided proportions: Dougherty, Lahey, and Creary

each owned one-sixth, and Ackley three-sixths. Connected with the last named flume, at the lower end of it, is another, known as the Side Hill Flume, extending from the point of connection toward and to the Yuba River. The same persons who owned the Blue Point Claim and Flume were, at the commencement of this suit, and for three years before then had been, the owners of the Side Hill Flume in the following undivided proportions: Beatty, Whalen, and Ackley each owned one-twelfth; Dougherty, two-twelfths; Creary, four-twelfths and Lahey threetwelfths. These several flumes had, on the 30th of November, 1865, been used for more than three years by the parties interested in the working of said mining claim, and in washing and extracting the gold therefrom. The gold-bearing earth of the Blue Point Claim was of a quality that required its passage through flumes of the aggregate length of those named, in order to save and secure the gold therein, as about five-twelfths of the gold obtained by the process was from the Side Hill Flume. Adjoining the Blue Point Claim is another mining claim known as the "Union Claim," connected with and belonging to which is a flume known as the "Union Flume," extending from the Union Claim to the Yuba river. In its course downward it approaches near to the lower end of the Cheek and Ackley Flume. The defendant Creary was the principal owner of the Union Claim and Flume on the 30th of November, 1865. The plaintiffs had not at that time nor when this suit was commenced any interest therein. On the day last named, while the Blue Point Claim was being worked by the use of several flumes first mentioned, the defendant Creary, without the knowledge or consent of the plaintiffs, forcibly severed and destroyed the connection between the Cheek and Ackley Flume and the Side Hill Flume, and prevented the water freighted as it was with gold-bearing earth, from passing into the Side Hill Flume, by conducting it from the Cheek and Ackley Flume into the Union Flume. Upon discovering what had been done, the plaintiffs adopted measures by which the connection between the Cheek and Ackley Flume an I the Side Hill Flume was restored, so that the water and goldbearing earth was made to pass into the Side Hill Flume as it was wont before the defendant Creary changed its course. On the next day Creary, with a force sufficient to effect his

purpose, again destroyed the connection between the Cheek and Ackley Flume and the Side Hill Flume, and diverted the water and gold-bearing earth into the Union Flume. These acts, the plaintiff's allege in their complaint, were against their will and consent, and to their great damage and irreparable injury; and that by means of the alleged wrongs so committed by the defendant Creary, and which they charge he intends to continue by a perpetual diversion of the water and earth into the Union Flume, they will be deprived of and lose their proper share of the gold of the Blue Point Claim, which would be saved to them with others interested in the Blue Point Claim, if the water were permitted to run through the Side Hill Flume as the same had run before the commission of the alleged wrongs of which they complain. The defendant Ackley refused to join with the plaintiffs in their complaint against Creary, and therefore was made a defendant.

The foregoing facts, with others, are set forth in the stating part of the complaint, followed by a prayer for the equitable. interposition of the court by injunction, to be directed to the defendant Creary, commanding and enjoining him, and his agents, servants, and employes and each and every of them, to desist and refrain from the continuance of the alleged wrongful acts complained of, and which the defendant Creary, as alleged, intended to continue; and further commanding and enjoining the same persons from interfering, in any manner whatever, with the free passage of all the waters used in working the Blue Point Claim, into and through the Blue Point, Cheek and Ackley and Side Hill Flumes, and from diverting the water into the Union Flume; and that, upon the final hearing of the cause, the injunction might be made perpetual. And the plaintiffs prayed for such other relief as might to the court seem equitable.

The complaint was verified and filed, and the judge of the district court made an order.that the defendants show cause, if any they had, at a particular time and place, why the i junction for which plaintiffs prayed should not be granted. At the time and place appointed, the defendants appeared, and, for cause against the issuing of an injunction, laid before the judge affidavits showing that the Side Hill Flume was so dilapidated and worn out as to be unfit for the use for which

it was constructed. On the part of the plaintiffs, affidavits were also submitted, controverting in a great measure those of the defendants as to the condition of the Side Hill Flume, and showing that notwithstanding it was not in as good condition as when new, it was sufficient, with slight repairs, for the uses for which it was made.

The defendant Creary also submitted his own affidavit, setting forth that the Blue Point Mining Company, and the Cheek and Ackley Flume Company, and the Side Hill Flume Company, were separate organizations, independent of each other, and were formed at different times, and that some time about the month of June, 1864, the Blue Point Mining Company made an agreement with the owners of the Cheek and Ackley Flume Company, and also with the Side Hill Flume Company, by which the Cheek and Ackley Company agreed to pay the Blue Point Company five dollars per day for the privilege of taking and receiving from the flume of the last named company the water and gold-bearing earth and the gold therein that passed through the Blue Point Flume; and that the Side Hill Company agreed to pay to the Blue Point Company such sum as it was reasonably worthto wit, ten dollars a day-for the privilege of taking and receiving from the Cheek and Ackley Flume the water and the gold-bearing earth and the gold therein which passed through that flume. That notwithstanding such agreements made with the fluine companies, the owners of a major portion of the interests therein, respectively, wholly neglected and refused to pay the Blue Point Mining Company anything whatever, as they had agreed to do. He then states that the Blue Point Mining Company purchases the water with which to work their mining ground, and consequently have the entire management and control of the water and the goldbearing earth and the gold therein which passed out of their flume, and that at the time the affidavit was made, by an agreement existing between the Blue Point Company and the Cheek and Ackley Company, the latter received into its flume the water and earth with the gold remaining therein from the Blue Point Flume, at and for the consideration of five dollars a day, with the right reserved to the Blue Point Company to control the water and tailings at the lower end of the Cheek