79 F. 821 | U.S. Circuit Court for the District of Nevada | 1897
Did the right to use the surface ground at the mouth of the tunnel as a dump pass by the con
In Bank v. Miller, 6 Fed. 545, 551, Judge Deady said:
“That a sale of any real property carries' with it any easement or privilege* which is necessary to its enjoyment, and at the time is in use thereon and therewith, as an appurtenance in fact, although not technically so at law; and this upon the presumption, more or less cogent, according .to the circumstances, that it was the intention of the parties to the agreement of sale that it should pass with the property to which it was then apparently subservient.”
In Insurance Co. v. Patterson, 103 Ind. 582, 586, 2 N. E. 188, 191, the court said:
“Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case the law implies that with the grant of the one an easement is also granted or reserved, as the case may he, in the other, subjecting it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage, in substantially the same condition in which it appeared and was used when the grant was made.”
In U. S. v. Appleton, 1 Sumn. 492, Fed. Cas. No. 14,463, the court held .that, where a house or store is conveyed by the owner thereof, everything passes which belongs to, and is in use for, the house or store, as an incident or appurtenance. Mr. Justice Story, in his opinion, said that this rule “is implied from the nature of the grant, unless it contains some restriction, that the grantee shall possess the house in the manner, and with the same beneficial rights, as were then in use and belonged to it. The question does not turn upon any point as to the extinguishment of any pre-existing rights by unity of possession, but it is strictly a question what passes by the grant.”
In Voorhees v. Burchard, 55 N. Y. 98, 102, the land conveyed was .designated as “being the mill property of the said Ransom Rathbone in the village of Rathboneville,” then giving metes and bounds, embracing 7.9 acres of land, with appurtenances. It was shown by the evidence that in front of the mills was an open space, extending to the highway, containing 62 rods of land, which was the locus in quo in the action of trespass brought by the plaintiff, and was not included within the boundaries of the deed, but had been used as a mill yard for the deposit of logs and lumber sawed at the mill for 25 years by Ransom Rathbone prior to his conveyance. The trespass complained of was the deposit of saw logs on the open space in front of the mills. It was shown that ,the entire use of this mill yard was necessary to the beneficial enjoyment of the mills. The court held that, upon the facts; an-easement in the locus in quo for a way and for a mill yard was carried with the principal thing conveyed, and, among other things, said:
*825 “But the controlling thing is this: How much and what was necessary for the mill? the actual use by the successive owners being evidence of this. .5 * * it iB the necessity of the mill tor its full and free enjoyment which controls in indicating what and liow much shall pass as an incident appurtenant to that in terms conveyed.”
A tunnel right through a specific piece of ground is a right to outer upon and occupy the ground for the purpose of prosecuting work in the tunnel, and to extract therefrom waste rock or earth necessary to complete the running of the tunnel, and making such use thereof, after completion, as may be necessary to work the mining ground or lode owned by the party running the tunnel. By implication the grant of such a right carries with it every incident and appurtenant thereto, including the right to dump the waste rock at the mouth of the tunnel on the land owned by the grantors at the time of the conveyance of the tunnel right, such right or easement being necessary for the full and free enjoyment of the tunnel right.
The views herein expressed, and conclusions reached, are sustained by ihe following additional authorities: Sparks v. Hess, 15 Cal. 187, 196; Cave v. Crafts, 53 Cal. 135, 138; Farmer v. Water Co., 56 Cal. 11, 33; Smith v. Cooley, 65 Cal. 46, 48, 2 Pac. 880; Jackson v. Trullinger, 9 Or. 393, 398; Scott v. Michael, 129 Ind. 250, 254, 28 N. E. 546; Coolidge v. Hager, 43 Vt. 9, 14; New-Ipswich W. L. Factory v. Batchelder, 3 N. H. 190; Lampman v. Milks, 21 N. Y. 505; Ward v. Warren, 82 N. Y. 265, 268; Holloway v. Southmayd, 139 N. Y. 390, 402, 34 N. E. 1047, 1052; Witte v. Quinn, 38 Mo. App. 682, 692; Bowling v. Burton, 101 N. C. 176, 180, 7 S. E. 701; Gurney v. Ford, 2 Allen, 576; Ammidown v. Ball, 8 Allen, 293. It is therefore unnecessary to consider any of the questions upon ihe other points raised by the pleadings, and especially upon the point, as to whether or not an estoppel was properly pleaded or proved. The evidence which was objected to, as to its insufficiency to establish an estoppel, was properly admitted in evidence as tending to show the situation of the land, and the conduct of the parties, and as bearing upon the question of their intentions at the time the conveyance of the tunnel right was executed; and it matters not whether it was sufficient for the purpose of establishing an estoppel, as the points discussed are absolutely conclusive as to the rights of the parties. The plaintiff lias the legal title to the laud covered by the dump at the mouth of the tunnel, which is the locus in quo in controversy; but he holds such title subject to an easement and right of way of the defendant to use said land, and so much thereof, and no more, as may be necessary for a dump, with the right to deposit any and all waste rock and earth conveyed through the tunnel owned by the defendant. A decree will be entered in accordance with the views expressed in this opinion.