« PreviousContinue »
know to be advantageous on the whole to their own interests. If fairly proved, why may not the universal custom of the mining regions or the oil regions establish the law for those places, however, different that may be from the rules adapted to a purely agricultural country? The torrid climate of India requires the storing up of large quantities of water for use in dry seasons, so when the reservoir of the Zemindar of Carvatenagarum burst and injured the railway line, Fletcher . Rylands was held not to apply, and one of the reasons given was because the reservoir was a public necessity maintained in accordance with the universal custom of the country: L. R. 1 Ind. Ap. 364.
It is, perhaps, worth while-though this review has already taken more space than at first intended—to reproduce on this point the argument made before the Supreme Court based upon the cases mentioned.
In Carlyon v. Lovering, 1 H. & N. 784, above cited, a custom to discharge into a stream the waste product of the mines in the Stannaries was sustained. The Court said: "We do not see that this has a tendency to destroy the plaintiff's land or exclude the plaintiff from the use of the land, except to a partial extent. We think that the custom alleged is sufficiently definite and is not unreasonable. It is possible more stuff from the mine may come down at one time than at another, but that does not show that the custom is bad. We think that it is to be confined in use to the necessary working of the mine."
In Rogers v. Brenton, 10 Q. B. 26, the Court recognized the validity of a custom to take up tin mines in the following language: The mine is parcel of the soil, the ownership is in the owner of the soi!, but it is a parcel which to discover and bring to the surface may ordinarily require capital, skill, enterprise and combination, which, while in the bowels of the earth, is wholly useless to the owner as well as to the public, and the bringing of which into the market is eminently for the benefit of the public. If, therefore, the owner of the soil cannot, or will not, do this for himself, he shall not be allowed › lock it up from the public, and, therefore, in such case . .
any tinner, that is, any man employing himself in tin mining, may secure to himself the right to dig the mines under the land, rendering a certain portion of the produce to the owner of the soil." And the Court, though styling this custom “a strong invasion of the rights of ownership," said: “There can be no doubt that it is most reasonable, fulfilling every requisite of a good custom."
In California precisely similar reasoning has been adopted. In that State the public interests depended upon the development of the gold mines, which constituted a large portion of the natural resources of the country. The courts there have always recognized the fact that the mining customs, which originated from the exigencies of the case, were valid as prescribing the rules of mining in particular localities. They 'were necessary, because in no other way could mining be carried on successfully. They were proper and reasonable, because established by those who were most competent to decide the question. Any one who discovered a lode or vein of ore located it by posting a notice on his claim. That gave him a title against everybody else. In minor points every locality had its particular usage, and these were always sustained. In Morton . Salambo Co., 26 Cal. 527, it was held that where any local mining customs exist, controversies affecting a mining right must be solved and determined by the customs and usages of the bar or diggings embracing the claim to which such right is asserted or denied, whether such customs and usages are written or unwritten. In another case the local custom of the diggings required every man to work his claim two days in every ten, from May to November. Failure to do so worked a forfeiture of the claim: Packer v. Heaton, 9 Cal. 568; Strang v. Ryan, 46 Cal. 33; St. John v. Kidd, 26 Cal. 264. So, in Colorado, in the early settlement of the territory the location of mining claims was regulated by the local usages and customs of the district: Sullivan v. Hense, 2 Col. 424. These mining customs acquire validity from the acquiescence, of the people: Harvey v. Ryan, 42 Cal. 626. The miner's right comes from the mere appropriation of the claim, made in accordance with the mining rules
and customs of the vicinage: Gore v. McBrayer, 18 Cal. 582; Colman v. Clements, 23 Cal. 245. The law is the same in Nevada: Orcamuno 7. Uncle Sam Co., 1 Nev. 215: Mallett v. Uncle Sam, 1 Nev. 188.
This question has also been considered in the Supreme Court of the United States. Mr. Justice Field, in Atchison v. Peterson, 20 Wall, 507, stated the law very clearly on page 510: "By the custom which has obtained among miners in the Pacific States and Territories, where mining for the precious metais is had on public lands of the United States, the first appropriator of mines, whether in placers, veins, or lodes, or of water in the streams on such lands for mining purposes, is held to have a better right than others to work the mines or use the waters." "As respects the use of water for mining purposes, the doctrines of the common law, declaratory of the rights of riparian owners, were, at an early day, after the discovery of gold, found to be inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection." After stating the custom in the Pacific States as to appropriation of the streams for mining purposes, Mr. Justice Field says: "So the miners on the public lands throughout the Pacific States and Territories, by their customs, usages and regulations, everywhere recognized the inherent justice of this principle, and the principle itself was at an carly period recognized by legislation and enforced by the courts in those States and Territories: Irwin v. Phillips, 5 Cal. 140."
In Snow v. Parsons, 28 Vt. 459, the reasonableness of the use of a stream by the upper riparian owner was held to be a question of fact, to determine which testimony, showing the uniform usage of the country, was admissible. The offer in that case was to show that it had been the universal and uniform custom and practice to discharge the spent bark of tanneries into the streams on which they were situated ever since the country was first settled, and that dam owners situated below on the streams had never, so far as witnesses knew, disputed the right to do so until now; that tanneries could not be conducted at any profit without that means of
disposing of their spent bark, and that the withholding such use of the stream from tanners would have excluded that branch of industry from the State; and that the same custom and practice had uniformly prevailed in all the States of New England. It was admitted by defendant that, prior to 1844, there was no tannery on this particular stream and this suit was brought about ten years afterwards. Judge Redfield said, the question "must be determined upon general principles applicable to the entire business of tanning, and the importance of discharging its waste materials in this mode and the probable inconvenience of those below. . . . It seems to me the uniform custom of the country for generations would be of some significance in determining its reasonableness. A uniform general custom upon this subject ought, upon general principles, to have a controlling force."
An analogous custom in booming logs is considered in Saunders v. Clark, 106 Mass. 331.
And in Stone v. Bumpus, 46 Cal. 218, a local custom was allowed to be shown by which the owner of a mining claim, comprising the bed of a cañon, was allowed to erect a dam across the bed of the cañon to enable him to work the same, even if other mining claims on the same cañon of subsequent location became thereby flooded.
Custom, in this sense, is merely the tacit recognition of the general advantage or necessity of certain things usually done, and which the common sense of the neighborhood recognizes as proper and right. It is probably some such thought which underlies the expression "the natural user of the land," because whatever, is usual and customary; that which “ "everybody does" becomes, in a sense, natural. Plowing is not a "natural" use of land in that the natural character of the land is destroyed, but it is natural in that everybody knows that if agriculture is to be carried on at all, that is the way to do. Yet the plowing of land and the cutting down of trees to permit plowing to be done may, and often does, result in serious changes in the character of the streams. The Zemindar's reservoir was "natural" in India because authorized by custom, and, as was said "the only possible mode of natural use."
But in England the conditions of life were so different that Rylands' reservoir was merely an unusual structure threatening extraordinary danger.
In the second place, it was urged with some confidence, before the Supreme Court, that Sanderson's case involved at most a question of nuisance and was to be governed by the rules applicable to that branch of the law. The language of Lord Cransworth was quoted from St. Helen's Smelting Company v. Tipping, 11 H. L. 642: “I well remember trying a case in the county of Durham, where there was an action for injury arising from smoke in the town of Shields. It was proved incontestably that smoke did come and, in some degree, inter- . fere with a certain person, but I said: You must not look at it with a view to the question whether abstractedly that quantity of smoke was a nuisance, but whether it was a nuisance to a person living in the town of Shields.''
And so, in Pennsylvania, the above language was quoted with approval in Rhodes v. Dunbar, 57 Pa. 287; and again in Huckenstine's Appeal, 70 Pa. 102. In the latter case the Court said: "The properties of the plaintiff and defendant lie adjoining each other on the hillside overlooking the city, whose every-day cloud of smoke from thousands of chimneys and stacks hangs like a pall over it, obscuring it from sight. This single word describes the characteristics of this city its kind of fuel; its business the habits of its people and the industries, which give it prosperity and wealth. The people who live in such a city or within its sphere of influence do so of choice, and they voluntarily subject thenselves to its peculiarities and its discomforts for the greater benefit they think they derive from their residence or their business there."
If, then, a nuisance is a question, not only of the thing done, but of the place where and circumstances under which it is done; if persons in a populous manufacturing town have to put up with poisonous vapors, why should not persons in Scranton have to make the best of it when the surface streams are polluted by the drainage from mines, from the like of which the whole neighborhood has derived its wealth and prosperity?