220 F. 80 | 8th Cir. | 1915
Lead Opinion
This action for the recovery of damages occasioned by the deposit of rock and debris by plaintiff in error upon the property of the defendant in error, was formerly before this court, and the opinion of the court is published in Himrod v. Ft. Pitt Mining & Milling Co., 202 Fed. 724, 121 C. C. A. 186, to which reference may be had for a statement of the essential facts.
Upon the second trial, the deed and mining lease referred to in the former opinion were received in evidence. The lease provided for certain mining and tunnel work to be done by plaintiff in error and another, in a portion of the Oneida lode claim, for two-years after August 15, 1894. The deed, which was executed to the plaintiff in error and his associate and their assigns at the same time as the lease, recited the ownership of distinct lode claims by the parties, the desire of the grantees to extend the No. 2 tunnel or level of the Oneida mine into their own claims “for the purpose of working and draining said Lamartine and other mines through said level, tunnel, or adit so run or to be run,” and then granted to them a perpetual right of way
At the close of the evidence the court instructed the jury that the plaintiff in error had no right to deposit, upon the surface of the Oneida claim, rock and waste brought from the tunnel or mines beyond the Oneida claim, and the jury returned a verdict against the plaintiff in error. ■ The instructions of the court, denying the plaintiff in error the right of dumpage on the surface of the Oneida claim, are ■claimed to be erroneous, because the grant of that right was implied in the deed, as it was reasonably essential to carrying on his mining operations through the tunnel, and because the grantor had deposited the waste from the Oneida mine at the mouth of the tunnel before the making of the deed, and because the plaintiff in error for many years after the execution of the deed had used that place for the deposit of waste from his mines without objection on the part of the •grantor.
. It is not requisite to an implied grant that there is an absolute physical necessity for the right demanded. It is said in Pettingill v. Porter, 8 Allen (Mass.) 1, 85 Am. Dec. 671, there may be a way by necessity when another cannot be got or made without unreasonable labor and expense, and that in determining the question the jury may consider the comparative value of the land and the probable cost of such ways, and that—
‘■the word ‘necessary’ cannot * * * be limited to absolute physical necessity. If it were so, the way in question would not pass with the land, it another way could be made by any amount of labor and expense, or by any possibility. If, for example, the property conveyed were worth but $1,000, it, would follow from this construction that the plaintiff’s intestate would not have the right of way over the triangular piece as appurtenant to the land, provided he could have made another way a£ the expense of $100,000. If the word ‘necessary’ is to have a more liberal and reasonable interpretation than this, the one adopted by the judge must be regarded as correct. Its effect was-to require proof that the way over this triangular piece was reasonably necessary to the enjoyment of the dwelling house granted.”
In the case of Schwab v. Smuggler-Union Min. Co., supra, this court held that the grant of the right to deposit tailings and débris in a river, whence they would be carried through the flumes, sluices, and reservoirs of the grantor, gave the implied right to deposit the tailings and débris on grantor’s lands and claims, as they were precipitated at the ends of the flumes and sluices. In the present case the grant allowed plaintiff in error (1) to conduct drainage water from his mines through the Oneida tunnel, and (2) to use the tunnel as a carriageway in working his mines in such manner as he deemed proper. It is apparent that if the plaintiff in error had deposited débris at the mouth of the mine as a result of the discharge of drainage water, the principle announced in the Schwab Case would apply. No reason is perceived why it may not be as necessary to deposit the débris there, if carried by cars through the tunnel, as if carried as a deposit in water and through drainage ditches. The nature of the surface where the right of deposit is claimed, its adaptability and value-for other uses, the. accessibility of other places where dumping could be made, and the reasonable cost of acquiring and using such a place of deposit, are among the considerations that may enter into the question of an implied grant to make such a deposit in mining or tunnel operations as a reasonable necessity.
A number of other errors are alleged, but a careful examination of them discloses no error of which plaintiff in error can complain; but, for the reasons already indicated, the judgment must be reversed, and a new trial granted.
Dissenting Opinion
I dissent from the opinion of the majority of the court, for the reason that in my judgment the reversal is based upon a ground differing from the theory on which the case was tried in the court below. In the lower court the defendant in error based its defense on the theory that its right to dump waste on the Oneida claim appears on the face ol the deed. It asked an instruction to that effect. It made no request for an instruction submitting to the jury the question whether the privilege to so dump waste was reasonably necessary to the enjoyment of the right granted by the deed, its contention below, and in this court also, is that its right appears on the face of the deed, and that it is to be determined by the court as a matter of law.