150 P. 313 | Nev. | 1915
Lead Opinion
By the Court,
Respondent instituted proceedings in the district court of Esmeralda County to condemn portions of certain patented mining claims belonging to appellants. From an order of the court made upon the hearing of certain preliminary questions, an appeal has been taken.
The respondent alleges in its complaint that it is organized for the purpose of milling, and reducing by other methods, gold, silver and other ores, and that it now is, and for a long time past has been, engaged in the carrying .on of the said business of milling and reducing ores; that the said respondent is authorized by the laws of the State of Nevada to condemn, for use in the carrying on of its business, the rights sought to be condemned; that in the operation of said mill there are discharged therefrom large quantities of pulverized rock and earth, commonly known as " tailings, ” without the discharge of which it is impossible to operate the said mill, and that said tailings are valuable and are being conserved by respondent for re-treatment; that, in the continued operation of the said mill, all of the lands owned by the respondent and accessible for their deposit became covered with the said tailings, and that it became necessary for the respondent to enter upon and use the lands of other persons for the deposit and storage of said tailings; that large quantities of said tailings are deposited upon the lands described in the complaint, within retaining dams erected by the respondent for their conservation, and that it is necessary to its business that the respondent be given the right by condemnation to use the surface of said lands as a storage place for the said tailings, and as a place for the disposal, treatment, and reduction thereof; that the use to which respondent seeks to put the surface of the said land is a more necessary use than the use to which the said surface of the land is now
The answer of the appellants admits their ownership of the lands in issue, and denies most of the material allegations of the complaint, denies that there is any necessity for the condemnation, and alleges that the tailings which have been deposited upon the lands by the respondent were abandoned by the respondent and are now the property of appellants.
Section 5614, Revised Laws, provides for the determining by the court or judge," before condemnation, ” of three questions, viz:
(1) Is the use to which the property is to be applied a use authorized by law?
(2) Is the taking of the property sought to be condemned necessary to such use?
(3) If the land is already appropriated to a public use, is the use to which it is sought to apply it a more necessary public use?
We do not think appellants could have dismissed their
"The principle which prevents the splitting up of causes of action, and forbids double vexation for the same thing, is a rule of justice, and not to be classed among technicalities.” (Dutton v. Shaw, 35 Mich. 431.)
It has been held to be the better practice to hear the preliminary matters first. (Balto. & O. R. Co. v. P. W. & Ky. R. Co., 17 W. Va. 847.)
By section 1, article 10, of the constitution of Nevada, as originally adopted, the mines of the state were exempt from taxation. While this section has been amended so as to permit the assessing for the purpose-of taxation of all patented mining claims, still every patented mining claim upon which $100 worth of work is done annually is exempt from taxation. (Stats. 1913, c. 83, p. 106.) The very purpose of the change was to stimulate mining.
Section 2456, Revised Laws, reads:
" * * - * Mining for gold, silver, copper, lead, cinnabar, and other valuable mineral, is the paramount interest of this state, and is.hereby declared to be a public use.”
Section 2458, Revised- Laws, provides that any citizen of the United. States may enter upon any unfenced and unimproved land (except mining claims) held in private ownership, and prospect thereon for various precious metals. ■
Section 5606, Revised Laws, provides, inter alia, that:
"The right of eminent domain shall be exercised in behalf of the following-public uses: * * * (6) Roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places to facilitate the milling, smelting, or other reduction of ores, or the working of mines, and for all mining purposes; outlets, natural or otherwise, for the deposit or conduct of tailings. * * *”
Can there be any doubt as to the policy of the state toward the mining and milling industry of the state? And who can doubt the wisdom of this policy, when we stop to consider the prevailing conditions in the state?
The language of the Supreme Court of the United States, in Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1087, 4 Ann. Cas. 1171, is applicable to the case at bar. It is there said:
"In some states, probably in most of -them, the proposition contended for by the plaintiffs in error would
Public use is in every case a matter of local policy. (15 Cyc. 581; Madera R. Co.v. Raymond G. Co., 3 Cal. App. 668, 87 Pac. 27; Highland Boy G. M. Co. v. Strickley, 28 Utah, 215, 78 Pac. 296, 1 L. R. A. n. s. 976, 107 Am. St. Rep. 711, 3 Ann. Cas. 1110.)
The Supreme Court of Utah, in the case of Highland Boy Gold Mining Co. v. Strickley, 28 Utah, 215, 78 Pac. 296, 1 L. R. A. n. s. 976, 107 Am. St. Rep. 711, 3 Ann. Cas. 1110, passed upon a statute which, in so far as it is material to the case at bar, is identical with the Nevada statute. The court said:
"It being conceded, and this court having held, that the construction and operation of irrigating ditches in this state is a public use (Nash v. Clark, 27 Utah, 158, 75 Pac. 371, 1 L. R. A. n. s. 208, 101 Am. St. Rep. 953, 1 Ann. Cas. 300, supra), it follows that the construction of roads and tramways for the development of the mining industry is a public use, as the same line of reasoning that applies in support of the doctrine in the one case holds good in the other. Otherwise a party owning a few acres, of farming land, or only a few square rods for that matter, could invoke the law of eminent domain, and by condemnation proceedings acquire a right of way across his neighbor’s land for an irrigation ditch to convey water to his small holdings; whereas, the owners of. mines and of works for the reduction of ores, the operations of which furnish thousands of men in this state with employment at good wages, and to which the general prosperity of the state is largely due, would be
That case was taken to the Supreme Court of the United States, by which tribunal the judgment was affirmed in Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 26 Sup. Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174.
Substantially the same question here involved has been passed upon by this court in two cases, the opinion in both cases having been written by Mr. Justice Hawley. The question was so ably discussed by that eminent jurist that it seems to us a bare reference to them should suffice. (Dayton M. Co. v. Seawell, 11 Nev. 394; Overman S. M. Co. v. Corcoran, 15 Nev. 147.)
See, also, Byrnes v. Douglass, 83 Fed. 45, 27 C. C. A. 399; Lewis on Eminent Domain, 3d ed. sec. 275, et seq.;
It is true that the statute under consideration in the Nevada cases cited has been repealed, but the logic of those cases is applicable to the statute now in existence in the state.
"' Abandonment' is a word which has acquired a technical meaning, and there can be' no reason why a different signification should be given to it when applied to the
There can be no question but that the foregoing quotation correctly states the law. (1 Cyc. 5; Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 39 Pac. 1058; Ritter v. Lynch, 123 Fed. 936; St. John v. Kidd, 26 Cal. 271; Richardson v. McNulty, 24 Cal. 345; Judson v. Malloy, 40 Cal. 309; Barnett v. Dickinson, 93 Md. 258, 48 Atl. 840; Worsham v. State, 56 Tex. Cr. R. 253, 120 S. W. 443, 18 Ann. Cas. 134; Hawke v. Wentworth, 4 Ariz. 317, 39 Pac. 809.)
The trial court, in its written decision, after declaring the law to be as above stated, found that there had been no abandonment. Before respondent began to deposit its tailings upon the ground of appellants, it sought legal advice, and made the deposit accordingly. It conserved the tailings by having a man on hand to keep a dam built up so as to prevent their being washed away, which it is not likely it would have done had it intended abandoning them. The testimony was to the effect that
"Where a corporation invested with the power of eminent domain enters upon land without the consent of the owner, express or implied, and places improvements thereon, and subsequently institutes proceedings to condemn the same land, the common-law rule that a structure erected by a tort-feasor becomes a part of the land does not apply, and the owner is not entitled to the value of the improvements thus wrongfully erected.” (15 Cyc. 763.)
See, also, Oregon Ry. & N. Co. v. Moiser, 14 Or. 519, 13 Pac. 300, 58 Am. Rep. 321; 5 Am. & Eng. Ency. 567; Searl v. School Dist. No. 2, 133 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed. 740; Chase v. School Dist. No. 10, 8 Utah, 231, 30 Pac. 757, 16 L. R. A. 805; Cal. P. R. R. Co. v. Armstrong, 46 Cal. 85; International Bridge & T. Co. v. McLane, 8 Tex. Civ. App. 665, 28 S. W. 455; Seattle & M. R. Co. v. Corbett, 22 Wash. 189, 60 Pac. 127; Calumet River Ry. Co. v. Brown, 136 Ill. 322, 26 N. E. 501, 12 L. R. A. 84; Illinois Cent. R. Co. v. Le Blanc, 74 Miss. 650, 21 South. 760; Bellingham Bay & B. C. R. Co. v. Strand, 14 Wash. 144, 44 Pac. 140, 46 Pac. 238; Greve, et al., v. First Div. St. P. & P. R. Co., 26 Minn. 66, 1 N. W. 819; Newgass v. St. Louis, A. & T. R. Co., 54 Ark. 140, 15 S. W. 188; Jacksonville T. & K. W. Ry. Co. v. Adams, 28 Fla. 631, 10 South. 465, 14 L. R. A. 533; Denver & R. G. Ry. Co. v. Stancliff, 4 Utah, 177, 7 Pac. 530.
Does not this rule apply to the situation under consideration? Our statute (Rev. Laws, sec. 5606) expressly declares that the right of eminent domain may be exercised in behalf of certain " public uses, ” and among them
"Individuals, by securing a title to the barren lands adjacent to the mines, mills, or works, have it within their power, by unreasonably refusing to part with their lands for a just and fair compensation, which capital is always willing to give without litigation, to greatly embarrass, if not entirely defeat, the business of mining in such localities, and confirms the opinion there advanced
This rule is sustained by the great weight of authority: 15 Cyc. 633; State v. Superior Court, 44 Wash. 476, 87 Pac. 521; State v. Superior Court, 46 Wash. 516, 90 Pac. 663; Spring Valley Co. v. Drinkhouse, 92 Cal. 528, 28 Pac. 682; Butte Ry. Co. v. Mont. U. Ry. Co., 16 Mont. 504, 41 Pac. 233, 31 L. R. A. 298, 50 Am. St. Rep. 508; Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670; K. C. Ry. Co. v. Vicksburg Ry. Co., 49 La. Ann. 29, 21 South. 144, affirmed in Louisiana & A. Ry. Co. v. Louisiana Ry. & Nav. Co., 125 La. 756, 51 South. 712; State v. Superior Court, 64 Wash. 189, 116 Pac. 855.
It is intimated that since the tailings now upon the ground are only about ten feet deep, and since the outlet of the mill is sixty feet higher than the ground of the respondent which is covered by the tailings, there is no need for additional ground, as the tailings to be.produced in the future can be deposited upon these tailings now upon the ground. . Mr. Burch, the man of technical training and experience, testified that it would be easier mechanically to handle the tailings if not spread out so
"In the matter of the petition of the N. Y. & H. R. R. Co., the court, in discussing this question, said: 'It is claimed that there are other lands in the vicinity, equally well adapted to the use of the applicant as those sought to be acquired by these proceedings, and which, possibly, might be acquired by purchase from .the owners. But such objections to these proceedings are untenable. The location of the buildings of the company is within-the discretion-of the managers, and courts cannot supervise it. The legislature has committed to the discretion of the corporation the selection of lands for its uses, and if the necessity of lands for such purposes is shown, and the lands sought are suitable, the courts cannot control the exercise of - the discretion, or direct which of the several plats of ground shall be taken. If the taking of one plat of ground in preference to another could be shown to work great mischief, and result in great loss, which could be prevented by taking another, and the proceeding to take one parcel compulsorily, in preference to another equally well adapted to the uses of the company, is from some unworthy or malicious motive, and not in the interest of the public, the court might entertain the question, and in the exercise of a' sound discretionwithold its consent to the appropriation. B.ut-in this case there are good reasons, resulting from the presént
It is the general rule that, when a corporation seeks to exercise the right of eminent domain, its discretion in the selection of land for its use will not be questioned where it acts in good faith and not capriciously. (15 Cyc. 634; 10 Am. & Eng. Ency. Law, 2d ed. p. 1057, citing cases; Postal Tel. & T. Co. v. Oregon S. L. R. Co., 23 Utah, 474, 65 Pac. 739, 90 Am. St. Rep. 705; Samish River Boom Co. v. Union Boom Co., supra; Frick Coke Co. v. Painter, 198 Pa. 468, 48 Atl. 302.)
If such were not the rule, the same defense could be made with regard to any lands plaintiff might seek to condemn. We are clearly of the opinion that a necessity was shown by respondent for the condemnation of the land.
See, also, St. L., H. & K. Ry. Co. v. Hannibal U. D. Co., 125 Mo. 82, 28 S. W. 483.
"The following is a classification of the estates and rights in lands subject to be taken for public use: (1) A fee simple. * * *”
It does not say that a fee simple shall be taken, but that it is "subject” to be taken. Under such statutes, only such an interest as is necessary can be taken. (Lewis on Eminent Domain, 3d ed. sec. 450; Newton v. City of Newton, 188 Mass. 226, 74 N. E. 346; Neitzel v. Spokane I. Ry. Co., 65 Wash. 100, 117 Pac. 864, 36 L. R. A. n. s. 522; Tyler v. Town of Hudson, 147 Mass. 609, 18 N. E. 582; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Heyneman v. Blake, 19 Cal. 595.)
From the views expressed, it necessarily follows that the judgment appealed from should be affirmed, and it is so ordered.
Concurrence Opinion
I concur.
Concurrence Opinion
I concur in the order.