Abram

— On the 14th of July, 1890, the defendant Kaslowsky, to secure payment of the sum of $504.21, executed to the plaintiff a mortgage upon a certain mining claim and water-ditch, which he had owned for many years, known as the Stony Bar claim and Stony Bar ditch.

On the 23d of May, 1890, Kaslowsky and one Graydon located another mining claim, known as the Red Hill claim, which seems to have adjoined the Stony Bar claim, and across which the Stony Bar ditch extended.

In June, 1890, Graydon, and the defendants Stuart and Kaslowsky, began to work the Red Hill claim by the hydraulic process, dumping the debris and tailings upon the Stony Bar claim, and during that month they washed away seventy-nine feet of the Stony Bar ditch.

Work was then suspended until December, 1890, when the defendants, some of whom had purchased Graydon’s interest, began again to mine and wash away the Red Hill claim, dumping the tailings as before, and they continued such work up to the time this action was commenced, on January 9,1891. After resuming work on the mine, as aforesaid, defendants washed away eighty-seven feet more of the Stony Bar ditch.

In his complaint, the plaintiff alleged that Kaslowsky…