cases lay down the rule that where the subject is not provided for by constitutional enactment, and, pursuant thereto, declared such by the legislature, the question then becomes a judicial one.1 Primarily, however, it is a political question, and ought to be determined by the people for themselves; and it matters not whether they express their will through the constitution or through the legislature within the bounds of the constitution. Of course, under our form of government, a power not conferred by fair constitutional provision is withheld; and the constitution being a limitation upon the exercise of legislative power, the warrant for legislative enactment must exist therein or the legislation is unconstitutional. There are, of course, many exceptions to the foregoing rules, likewise distinctions between the federal and state constitutions; but the reader will find that subject properly treated in works upon constitutional law.

2

§ 1072. Must exercise right if claimed-When will not be enjoined. Even in those states where mining is considered a public use, the taking or making use of the mining property of another without resorting to regular proceedings in condemnation does not exist, and for obvious. reasons the high-handed use of one man's property by another will not be tolerated. If the legislature in its wisdom has conferred the extreme right of eminent domain upon a mining corporation, or upon individuals engaged in mining, they must resort to that remedy it does not place the law in their own hands. An example of the fallacy of any other rule is found in a recent Utah case, where there is a statute

1 Bliss v. Kingdom, 46 Cal. 651; Ahern v. Dubuque Lead & L. Co., 48 Iowa, 140; New Central Coal Co. v. George's Creek Coal & Iron Co., 33 Md. 537; Evans v. Heffner, 29 Mo. 141; Cleveland & Pittsburg Ry. Co. v. Ball, 5 Ohio St. 568; Brown v. Corey, 43 Pa. St. 495; Lion v. Gormley, 53 Pa. St. 261; Searle v.

Lackawana & Bloomsberg R. R. Co., 33 Pa. St. 57; Waddell's Appeal, 84 Pa. St. 90; West Va. Transportation Co. v. Volcanic Oil & Coal Co., 5 W. Va. 382.

2 Cooley, Const. Lim. (6th ed.), p. 39.

3 Dayton G. M. Co. v. Sewell, 11 Nev. 394.

authorizing the taking of ground for dumping and other mining purposes, including the right of way for pipe line or for ditches for mining purposes. A pipe line was laid

across several mining claims of the plaintiff, and an action was brought for injunction to restrain its use, it being already there (right of way was afterwards condemned). The lower court refused the injunction, the supreme court having previously dissolved an injunction with reference to a part of the same property. In upholding the judgment

of the lower court the supreme court uses these words: "It does not appear that there was any other way of reaching the mine with the water, or that any (other) water was obtainable. Without the water one of the largest mining industries in the state, employing hundreds of laborers, and producing hundreds of thousands of dollars' worth of mineral annually, must be closed down and cease operations. The laying of the pipe line across this barren, valueless land caused no appreciable injury to the plaintiff. . . . To restrain the laying of the pipe line would cause defendant irreparable damage, and destroy and lay waste a mining industry of incalculable value, throw out of employment hundreds of laborers, and seriously retard and injure the people of the community and state in which the mine is located. . . Under such circumstances, the remedy at law being complete, the plaintiff should be required to resort to such remedy." ." With becoming deference to the court, the hardship of the situation did not justify judicial legislation. Every principle of law and justice said to the defendant, “you cannot invade my property except armed with the law and in the manner authorized by the law." This is an extreme case. Perhaps no injury was done by the decision in the

IR. S. Utah, 1898, § 3588. See Sullivan, 17 Cal. 102; Yuba County post, Appendix.

2 McGregor v. Silver King M. Co., 14 Utah, 47, 45 Pac. Rep. 1091.

3 Crescent M. Co. v. Silver King M. Co., 17 Utah, 444, 54 Pac. Rep. 244. See also Jacobs v. Day, 111 Cal. 571, 44 Pac. Rep. 243; Slade v.

v. Cloke, 79 Cal. 239, 21 Pac. Rep. 740. Compare Edwards v. Allouez M. Co., 38 Mich. 46; United States v. North Bloomfield Gravel M. Co., 53 Fed. Rep. 625; Atchison v. Peterson, 1 Mont. 561; affirmed, s. c., 20 Wall. 502. See post, § 1074, p. 892.

particular case. But, obviously, the better rule would be to require the exercise of eminent domain, and enjoin the use without prejudice to such proceedings.

§ 1073. No inherent right of dumpage.- Neither of the rights mentioned in the foregoing section is inherent. No person, natural or artificial, has the right to cover his neighbor's land with debris from his mine or mill, nor to permit any of his refuse matter to flow or be placed upon the land of another. But, while this rule is emphatically true, it is one that is not absolute in the sense that the right cannot be acquired. As a general rule the right of dumpage or of flow of tailings, that is to say, the right of way for those purposes, can be acquired wherever mining is a public use. And while they will be required to respect legal rights, and to resort to the remedies the law has established, and to observe the rule which finds expression in the maxim Sic utere tuo ut alienum non ladas, yet they will not ordinarily be restricted by the extraordinary remedy of injunction. While they may acquire the right by eminent domain, in general, they will only be liable for damages if they do not. As was said by the supreme court of Alabama in the last case cited: So, as a rule, every one must so enjoy his own property as not to offend his neighbor's equal right to enjoy his own unmolested. But this rule cannot be enforced, in its strict letter, without impeding rightful progress, and without hindering industrial enterprise. Hence, minor individual interest is sometimes made to yield to a larger and paramount good. To deny this principle

3

1 Hobbs v. Amador & Sacramento Canal Co., 66 Cal. 161, 4 Pac. Rep. 1147; Robertson v. Black Diamond C. & M. Co., 47 Cal. 165; Richardson v. Kier, 34 Cal. 63; Keys v. Little York, etc. Co., 53 Cal. 724; Ralston v. Ploughman, 1 Idaho, 595; Nelson v. O'Neil, 1 Mont. 284; Harvey v. Side Silver M. Co., 1 Nev.

539; Keeley v. Green, 21 N. J. Eq. 27; Potter v. Froment, 47 Cal. 165; Elder v. Likens Valley Coal Co., 157 Pa. St. 490, 27 Atl. Rep. 545; Potter v. Rend (Pa.), 50 Atl. Rep. 821.

2 Stein v. Burden, 29 Ala. 127.

Drake v. Lady Ensley C. & L. Co., 102 Ala. 502, 14 S. Rep. 749.

would be to withhold from the world the inestimable benefits of discovery and progress in all great enterprises of life. The rough outlines of natural right or natural liberty must submit to the chisel of the mason, that it may enter symmetrically into the social structure."1

All of which is absolutely true; but whatever invasion of private right becomes necessary should at least be under the form of law, i. e. in the exercise of eminent domain. Except in cases of insolvency of the invader, and a wilful and wrongful invasion of private rights, however, as a general rule the remedy by way of an action for damages ought to be a sufficient one.

§ 1074. Value of land immaterial.- No apology is meant in the last preceding section for any unwarranted attempt at invasion upon private rights. It is enough that men have the right of eminent domain in mining business. No higher right ought to be sought for or demanded. But while this is true, it is like a man's inherent right to evade the performance of his contract — he may do so, but he must answer in damages; and the same principle applies here, though it does not follow that an injunctional judgment should always result. The right of enjoyment of property of course is inherent, and it is no answer to say that the land sought to be damaged is of no value, or useless for any other purpose.. While this may go in mitigation of damages it does not destroy the right. In such case a right is invaded, and this may be done only as allowed by law.

1 Drake v. Lady Ensley C. & I. Co., 102 Ala. 502, 14 S. Rep. 749. See also Hughes v. Anderson, 68 Ala. 280; Otaheite G. & S. M. & M. Co. v. Dean, 102 Fed. Rep. 929; Robb v. Carnegie Bros., 145 Pa. St. 324, 22 Atl. Rep. 649; Lentz v. Carnegie Bros. & Co., 145 Pa. St. 612, 22 Atl. Rep. 219; Boynton v. Longley, 19 Nev. 69, 6 Pac. Rep. 437; Harvey v. Susquehanna Coal Co. (Pa.), 50 Atl. Rep. 770.

2 Jennison v. Kirk, 98 U. S. 461; Drake v. Lady Ensley C. I. & R. Co., 102 Ala. 501, 24 L. R. A. 64; Logan v. Driscoll, 19 Cal. 623; Esmond v. Chew, 15 Cal. 137; Suffolk G. M. & M. Co. v. San Miguel Cons. M. & M. Co., 9 Colo. App. 407, 48 Pac. Rep. 828; Foule v. Mann, 53. Iowa, 43; Sunburg v. Babcock, 61 Iowa, 601; Ehlers v. Stoeckle, 37 Mich. 261; Lebanon School District v. Female Seminary (Pa. St.), 12

A declaration of this right was lately made by the supreme court of Ohio in a case where the debris from defendant's coal-mine dump was washed down a creek and thence overflowed upon land of plaintiff, covering it with coal slack and debris. The defendant sought to justify by proving that he was conducting his operations in a skilful manner, and his acts were not characterized by malice or negligence. He also sought to set up a custom among coal operators in Hocking valley to deposit slack and refuse, and that the same naturally washed into the channel of Monday creek. In passing upon the rights of the respective parties the court say: "The further claim of the company, that it had the right to make the deposits in the places complained of because it was necessary to the successful conduct of its own business to so place them, seems no less wanting in substance. The effect is to measure the rights of the plaintiff in his lands and in the waters of Monday creek by the convenience or necessity of the company's business. An owner of land in Ohio is not subject to any such narrow and arbitrary rule."1

§ 1075. Substantial rights should not be wrongfully invaded. Respecting just such rights as we have now under consideration, the supreme court of Montana in a late case, while reaching a conclusion perhaps somewhat more harsh

Atl. Rep. 857. See also Cooley, Const. Lim. (6th ed.), pp. 49, 435; Carson v. Hayes (Oreg.), 65 Pac. Rep. 814; Columbus, etc. Iron Co. v. Tucker, 43 Ohio St. 41, 26 N. E. Rep. 630; Lincoln v. Rodgers, 1 Mont. 217; People v. Gold Run Ditch & M. Co., 66 Cal. 138, 4 Pac. Rep. 1152.

1 Columbus & Hocking C. & I. Co. v. Tucker, 48 Ohio St. 41, 12 L. R. A. 577, 26 N. E. Rep. 630, citing with approval Tippin v. St. Helena Smelting Co., 4 Best & S. 608, 11 H. L.

Cas. 642; Bamford v. Turnley, 3 Best & S. 62; Crawford v. Rambo, 44 Ohio St. 279. See also Lincoln v. Rogers, 1 Mont. 217; Suffolk Gold M. & M. Co. v. San Miguel Cons. M. & M. Co., 9 Colo. App. 407, 48 Pac. Rep. 828; Robinson v. Black Diamond Coal Co., 57 Cal. 412; Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166. Compare Crescent M. Co. v. Silver King M. Co., 17 Utah, 444; Stevenson v. Ebervale Coal Co. (Pa.), 50 Atl. Rep. 818.