Jacob

Appeals from the judgment and from the order denying a new trial.

The action was brought to abate an alleged nuisance maintained by defendants upon the lands of plaintiffs, for an injunction, and for damages.

The nuisance consisted of a tailrace, sluiceway, cut or ditch, by which the water, bearing detritus from defendants’ hydraulic mine, was carried across the land of plaintiffs and discharged into the Trinity river.

This ditch had been used in connection with the working of the Bartlett and Evans mine for many years prior to and after the acquisition of a patent. That mine is the property of defendants, and a patent therefor had been obtained in 1869. The land of plaintiffs crossed by this ditch is now known as the Barthol Jacob Gold Placer mine. But at the time of the construction of the ditch, and for many years of its use thereafter, plaintiffs’ land was open, unappropriated, public mineral land of the United States. Entry and payment for the Barthol Jacob mine were made in October, 1887. This action was commenced within five years from the date of the issuance of the patent.

Defendants rely upon title by prescription, which was pleaded, and, in this connection, proved…