Thorndyke

(after stating the facts as above). From the pleadings of the parties we think it clear that no question of riparian rights arises in the case, all of them basing their alleged rights on their alleged respective appropriations of the public waters for mining, and other purposes connected therewith.

The exhibits and other evidence in the case show that Silver Bow Basin is a small pocket surrounded by high mountains, upon some of which are located the defendant’s lode mining claims — its mill, mill sites, buildings, and other improvements of that character being situated in the basin. Above the basin Lurvey creek forks, what is known as North or East Lurvey creek coming into the main stream at a point on what is now the defendant’s Solo lode claim. It appears that in this basin placer ground was worked by miners many years before the rights of either party to this controversy were initiated, and that in their operations those former miners used the water of both branches of Lurvey creek, bringing that from the North or East creek to the main stream by means of a ditch or flume.

The trial court found, among other things, that on and prior to July 2, 1897, Joseph T. Gilbert was the…