## Facts

- Silver King owned mining claims where it drove the Thayne (Jeanette) tunnel and encountered water about 700 feet from the tunnel mouth.
- The water was percolating through rock rather than flowing in a subterranean stream with a defined channel.
- Water issuing from the tunnel flowed into Thayne (Shadow) Lake.
- Crescent earlier dammed the lake’s outlet and diverted lake water by pipeline for its mining operations.
- Silver King later built a pipeline to convey water developed from its tunnel area to its own mine, routing the pipeline across Crescent’s mining claims.
- Crescent refused to grant or sell a right-of-way, but Silver King dug a trench and installed the pipeline anyway.
- The crossed land was barren, rocky, uncultivated, and unused, and the physical interference caused only nominal damage.
- Crescent sued seeking an injunction to stop the continued presence and use of the pipeline; the trial court denied an injunction and allowed at most nominal damages.

## Issues

1. Whether water developed as percolating water in Silver King’s tunnel belonged to Silver King as landowner, preventing Crescent from obtaining a superior appropriative right by diverting the water after it entered the lake.
2. Whether a court of equity should enjoin a continuing trespass (the pipeline) where the plaintiff’s injury is slight and compensable by damages, but an injunction would impose a disproportionate hardship on the defendant.

## Decision

- The Utah Supreme Court affirmed the trial court’s judgment.
- The court held the tunnel water was percolating water developed on Silver King’s property and therefore belonged to Silver King while on that land.
- The court concluded Crescent could not, by diversion from the lake, obtain a superior right as against Silver King to water that originated as percolating water on Silver King’s claims.
- The court upheld denial of injunctive relief because the encroachment caused only nominal injury and Crescent had an adequate remedy at law in damages.

## Legal Principles

- Percolating groundwater not shown to be part of a subterranean stream with a defined channel is treated as belonging to the owner of the land where it is found and developed.
- An appropriator cannot obtain a right superior to the landowner’s claim to percolating water by diverting it after it emerges, at least where the landowner timely asserts control consistent with ownership.
- Injunction is discretionary; even with a continuing trespass, equity may deny injunctive relief when the plaintiff’s harm is slight, damages provide an adequate remedy, and an injunction would impose a greatly disproportionate burden on the defendant.

## Conclusion

The court treated water encountered and developed in a mining tunnel as percolating water owned by the landowner and refused to stop a minimally damaging pipeline crossing by injunction, limiting the plaintiff to damages because legal relief was adequate and equitable relief would be disproportionate.


Crescent Mining Co. v. Silver King Mining Co., 17 Utah 444, 54 P. 244 (Utah 1898)