Appeal from the Fourteenth District.

On the 6th of June, 1859, the plaintiffs filed their complaint, alleging their ownership and possession of certain mining claims; that they had on said claims, for the purpose of working them, certain flumes and other property, and were continuously working the same ; that while so owning and working their claims, defendants unlawfully entered on them and constructed upon them a flume' of great length, cut trees upon them so as to obstruct the flow of tailings, and by means of the flume defendants constructed, negligently and carelessly desposited large masses of tailings on plaintiffs’ claims, burying up their flume, and other property, and the claims to great depth, with gravel, sand and rubbish, preventing plaintiffs from mining and decreasing the value of the claim, to the specified and great damage of plaintiffs ; that defendants threatened to continue their unlawful acts, and that if they did continue them the claims would become wholly valueless and the damage become irreparable. Prayer for a preliminary and perpetual injunction. No preliminary injunction was issued.

The answer denies: 1st, the unlawful entry and unlawful construction of the flume; 2d, the unlawful, careless and negligent deposit of tailings, etc., covering up the property of plaintiffs or preventing their working; 3d, denies the damage alleged by plaintiffs; 4th, sets up that defendants own the claims next above plaintiffs’ in the canon, and had a prior possession in their own claims to plaintiffs’ possession of theirs, and long prior to plaintiffs’ possession they had possession by means of a flume and other works necessary and proper therefor, received, conducted and deposited the tailings, flowing from said ravine from mining claims in the hill above, in the said ravine below their claims; that the plaintiffs and those from whom they claim had notice thereof; 5th, that dams erected by plaintiffs had caused the damages, if there were any.

Upon these issues the parties went to trial, and on the first trial defendants prevailed, through the instructions of the Court that the defendants, if prior in location, had a right to run flumes down on those below to their damage. The Supreme Court, on appeal, reversed the judgment, and on a second trial the plaintiffs had a decree for one hundred dollars damages, with a perpetual injuction.

The decree runs that plaintiffs “ have and recover of, etc., the sum of one hundred dollars and costs, taxed at $—.” Then follows a further direction that defendants be perpetually enjoined, etc.

After judgment and the entry of the order for a perpetual injunction, the plaintiffs moved for their costs of suit. The motion was overruled, except as to the costs of the perpetual injunction, the costs of trial being refused. Plaintiffs appeal from the order, made after final decree, refusing costs.