Lorenz

— Action to enjoin defendant from running a tunnel into the side of a mountain, under plaintiffs’ water-ditch. The judgment was in favor of the plaintiffs, awarding a perpetual injunction; and defendant has appealed from the judgment, and from an order denying his motion for a new trial.

The plaintiffs’ ditch was constructed along the side of a mountain, on the public land of the United States, for mining purposes; and it is not questioned that, *244 under acts of Congress, plaintiffs had acquired the right of way for, and were entitled to maintain, their ditch as constructed.

The court found that on the thirtieth day of October, 1886, the defendant located a mining claim on the side of the mountain, extending across and below the plaintiffs’ ditch; that for the purpose of prospecting this mining claim, the defendant had run a tunnel into the mountain, beneath plaintiffs’ ditch, extending about fifty feet beyond a vertical plane drawn on the line of the ditch. The floor of this tunnel is thirty-five to forty feet, vertically, lower than the bottom of the ditch. At the back end of the tunnel the bed-rock inclined downwards, indicating, as defendant believed, the existence of a “…