Van Dyke v. Midnight Sun Mining & Ditch Co.

(dissenting).

I agree that the motion to dismiss the writ of error should be overruled. I agree, too, with the views of the majority in so far as they hold that the doctrine of riparian rights, as known to the common law, is inapplicable to the conditions existing in the semiarid states and territories. I might even go so far as to say that that doctrine may perhaps be inapplicable to conditions existing in parts of Alaska, but for reasons hereinafter stated I believe that it was the intent and spirit of the act of Congress relating to Alaska that rights in and to property there situated should, generally speaking, and so far as applicable, be governed by the rule of decision laid down by the Supreme Court of Oregon.

It is evident, from the record, that the lower court proceeded upon the theory that the plaintiffs in error had no riparian rights in the Big Hurrah creek by virtue of the location of their placer mining claims, and that the defendant in error, by its declaration of a water right and construction of a ditch and diversion of water, even though all these acts were had and done subsequent to the location of the placer mining claims of plaintiffs in error, was a bona…

The plaintiffs in error are, and have been for a considerable period, the owners of certain placer mining claims on Big Hurrah creek, Alaska, so located as to cross that stream. They allege, and they gave evidence tending to show, that all the water of the creek is necessary for the proper working and developing of their claims. In 1902, after the location of these claims by the plaintiffs in error, the defendant in error posted notices near the creek and filed a claim in the recorder’s office of the district setting forth that it had appropriated all the water of Big Hurrah creek. In pursuance of that notice, the defendant in error in the year 1904 constructed a ditch, tapping the creek above the plaintiffs in error’s claims, and running for a distance of six or eight miles, by means of which ditch the defendant in error has been and is diverting all *460 the water of the creek, thus depriving the plaintiffs in error of any of it. This ditch was constructed across the said mining claims of the plaintiffs in error. The evidence is conflicting as to whether, at the time of its construction, the plaintiffs in error objected thereto; but it does show, without conflict, that they…