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P constructed a dam across the outlet of what is called 'Thayne' or 'Shadow' Lake, and by this means impounded and retained the waters flowing into said lake, and, by means of a pipe line inserted into said lake, took from the unappropriated waters thereof sufficient to fill its said pipe, and carried the same to the Crescent mine, for use in carrying on the mining operations of P. One of the principal sources of supply of Shadow Lake was the stream of water flowing from the Thayne or Jeanette tunnel, situated in and excavated upon the Thayne and Jeanette mining claims, the property of D. All the water issuing from the tunnel was developed by D, by the running and excavation of said tunnel, and that said water was first encountered in said tunnel at about 700 feet from its mouth, and was and is percolating water, issuing from the rocks in said patented mining claims. The water was not from any subterranean stream, having any defined course, bed, or banks, and that the waters were not open to appropriation by P or other person, excepting said D, and were subject to the control and ownership of D, and said tunnel was an artificial water course, and was not a natural source of supply of the lake. D built the tunnel by a trench dug in and upon P's land unlawfully, and the land itself was barren, rocky, uncultivated, and unused for mining claims, and is situated upon a barren, rocky, and worthless hillside. The digging of D's trench did not damage any mining claim of P. P sued D seeking an injunction against D’s use of P’s land. The court denied the request, and P appealed. The court found that D was the owner and entitled to the exclusive use and enjoyment of all the water issuing and flowing out of the tunnel before it reached the lake. P contends that the court should have decreed it a right by prescription to have the water percolating into and issuing from the tunnel.

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