The defendants were the owners and in possession of certain mining claims situate on Dutch Ravine, including the bed and banks of the ravine. They worked their claims by the hydraulic process, and had leading down the ravine a tail flume, used for carrying off their tailings and water, and for collecting and saving their gold. While the defendants were working their claims in this manner, the plaintiff, who owned mining claims below the defendants, commenced the construction of a ditch below the lower end of defendants’ flume, but upon the mining claims of defendants, for the purpose of appropriating the water discharged from the defendants’ flume for his own use in working his claim. The water used by defendants consisted of the natural water of the ravine, and other water purchased by them from a ditch company.

About the time plaintiff’s ditch was completed, but before water had been turned into it, defendants extended their flume to a point on the ravine below plaintiff’s ditch, so that it was impossible for plaintiff to turn the water into his ditch. *343 The terminus of the flume, as extended, is still upon the mining claims of the defendants.

It is claimed that the extension of the defendants’ flume could serve no useful purpose, and was done maliciously to deprive plaintiff of the use of the water; and this suit is brought to abate it (the extended portion) as a nuisance.

The evidence upon the trial was conflicting upon the question whether the extension to the ditch was advantageous to defendants in working their claims, and upon the question whether the maintenance of the plaintiff’s ditch would interfere with the flow of water and tailings from the defendants’ flume. The evidence tended to prove that the portion of defendants’ claims through which plaintiff’s ditch was cut was worthless for mining purposes. This evidence was admitted against the objections of defendants’ counsel, as was evidence which tended to show that the extension of defendants’ flume was not beneficial to the working of their claims.

The defendants asked the Court to instruct the jury that “the owner and possessor of a mining claim on the public domain has a right to prevent any subsequent comer from erecting or constructing any superstructure, cut, or ditch, on his claim, unless the right to construct the same is given by some mining custom or regulation.” This instruction was refused, but the Court instructed the jury, in effect, that if the plaintiff was the owner of a mining claim on the same ravine, below the defendants, he had a right to use the natural waters of the ravine for the purpose of working his claim; that he could lawfully construct a ditch upon the mining ground of the defendants for that purpose, provided he in nowise obstructed or interfered with the defendants in the proper working of their mining ground, nor in their perfect enjoyment of the same for mining purposes; that one person might appropriate public mineral land for mining purposes, and another party use the same for a different purpose, provided the different uses did not conflict.

*344 These rulings and instructions are assigned as error, upon an appeal from the judgment on the part of defendants.

Ordinarily, when one takes possession of land he is presumed to appropriate it for all purposes. Thus, when one. takes possession of a tract for farming purposes, and incloses it, it would not be competent for another to show his right to dig for coal upon it by proving that he does not interfere with the possession necessary for farming purposes on the part of the farmer. Very frequently, however, possession is taken of land for purposes purely temporary, and under circumstances which do not indicate a claim of ownership. Of such a character, doubtless, is the claim of the locator of a mining claim. The possession itself is generally constructive as to a large portion of the mining ground, and is established by the rules and regulations, of the district, or by the custom of miners.

The character of the possession necessary to work mining claims will vary with the nature of the mines, the mode adopted in working them, and, perhaps, with the character of the country. Mining claims are limited in extent; and it must be presumed that it was not intended that the first locator should prevent the working of contiguous claims further than is necessary. At the same time he ought not to be controlled in the mode he may wish to adopt in working his claim further than is necessary for the common good. The rights which the owner of one claim will require with reference to other claims differ with the locality and the character of the claims, and are usually regulated by mining rules or local mining customs. Some mining customs of a general nature, which have been repeatedly recognized by judicial decisions, may be said to have become a part of the common law of the land; but I know of no such general custom upon the point involved in this case.

Upon general principles the fact that the possession of the defendants was a qualified possession, taken for a specific *345 purpose, would not justify the intrusion of the plaintiff. The flume was extended for the avowed reason that it was necessary to enable the defendants to work their claims to advantage. In the absence of some custom which would restrict their right of possession, they ought not to be deprived of that right, because another may be able to convince a jury that such extension is really not beneficial to the worthing of their mine. If this could be done, another might deprive them of a portion which was still left, and they would not be able to work their claim according to their own judgment, but might be compelled to vary their operations to suit the whims of witnesses and jurors.

The evidence that the ground was not valuable for mining purposes could not be admissible, on general principles, to prove that defendants had no right to hold it. If the title to mining ground could be defeated by such evidence, no claim which was not paying could be considered secure. If parties are allowed by the mining regulations to include within their claims land outside of that which they expect to work, we must suppose, in the absence of proof to the contrary, that it is for the convenience of working the claims, and that its possession is necessary. The evidence was, therefore, improperly admitted, and the instructions given were erroneous.

Judgment reversed, and cause remanded for a new trial.

Crockett, J., dissenting:

I dissent.