Baillie v. Larson

• Citation: 138 F. 177
• Parties: BAILLIE et al. v. LARSON et al.
• Decision Date: 06 June 1905
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

138 F. 177

BAILLIE et al. v. LARSON et al.

United States Circuit Court, D. Idaho, Northern Division.

June 6, 1905

Heyburn & Batting and E. J. Hunter, for complainants.

Walter A. Jones, for defendants.

BEATTY District Judge.

The very important question involved is the right of a party to run a mining tunnel through the mining premises of another party.

On May 11, 1905, the defendants in this action commenced proceedings in the state court against the complainants for the condemnation of a tunnel right through the latter's mining claims. On May 16th these complainants demurred, and also caused the case to be removed to this court. On May 13th complainants commenced this action, asking an order to restrain defendants from running their tunnel, already commenced, through complainants' ground. They allege that defendants are mining and carrying away 'rock, ores, and other things of value' from their premises, but I am convinced that no ore or thing of value is being taken. If this were so, it would be easy to protect complainants against loss, but they have expressly declined all protection except by injunction. Also I am convinced that this tunnel cannot damage complainants, but, rather, might prove a benefit, by the development of their ground. The only ground upon which a restraining order can be justified is the naked legal right of complainants to entirely exclude defendants from their premises. It is most earnestly urged that this right is so absolute that it is substantially beyond the discretion of the court to refuse it. It is also said that if this relief is not speedily granted the defendants may extend their tunnel through the premises, and be beyond the court's jurisdiction. The question involved is too important and far too intricate for inconsiderate determination, but it is not admitted that the result suggested must follow. If complainants are now entitled to a restraining order, they would be entitled to an order restraining defendants from using the tunnel even after its completion, especially as they have commenced these proceedings. Their rights must be measured by their action and cannot be controlled by the court's delay. Neither can heed be given to the suggestion that this is a struggle between the weak and the strong. While the court is never without sympathy for the deserving weak, the law must run its course.

It appears that defendants base their right to run this tunnel upon section 2323, Rev. St. U.S. (U.S. Comp. St. 1901, p 1426), granting tunnel rights, and upon the Constitution and laws of this state providing for easements to mining properties.

In Calhoun G. M. Co. v. Ajax G. M. Co., 182 U.S. 499, 21 Sup.Ct. 885, 45 L.Ed. 1200, the claim of the locator of a tunnel site under said action to run his tunnel through a prior mining location was directly involved, and was determined adversely to the claim. While section 2322 (U.S Comp. St. 1901, p. 1425), in express terms, grants to the 'locator of all mining locations' only 'the exclusive right of possession and enjoyment of all surface included within the lines of their locations and of all veins, lodes and ledges throughout their entire depth the top or apex of which lies inside of such surface lines extended downward vertically,' the courts have reached the conclusion that such locators own everything lying perpendicularly under such surface, excepting veins apexing without the same. In accordance with this doctrine the court on page 509 of 182 U.S., page 890 of 21 Sup.Ct., 145 pl.Ed. 1200, says:

'The same reasoning disposes of the claim of plaintiff in error to the right of way for its tunnel through the ground of defendant in error, so far as the right is based on the statutes of the United States. So far as it is based on the statutes of Colorado, it is disposed of by their interpretation by the Supreme Court of Colorado.'

The effect of this ruling seems to be that in pursuance of section 2338, Rev. St. U.S. (U.S. Comp. St. 1901, p. 1436), a state may enact such laws for mining easements, which, under the construction of state courts, might grant the tunnel rights claimed by these defendants.

The state enactments on this subject which appear to be in force, are: (1) Act of January 12, 1877 (Rev. St. 1887, Secs. 3130-3142), of which sections 3132-3134 and 3140, 3141 are amended by act of March 9, 1899 (5 Sess. Laws, p. 350). By said sections 3130, 3131, the owner of a mining claim is granted certain easements, including tunnel rights through other mining claims, 'upon compliance with the provision of this chapter' for condemnation of such easements. (2) An act 'concerning mining tunnels,' of March 15, 1899 (5 Sess. Laws, p. 442), grants to any owner of ground with a tunnel located thereon the right to run the same through the claims of other parties, and provides for the payment of all 'actual damages or injury done to the owner of the claims crossed' by the tunnel. (3) The Constitution of the state, by section 14, art. 1, declares that the necessary use of the land for the drainage or working of mining tunnels and otherwise is 'a public use, and subject to the regulation, and control of the state. ' Private property may be taken for public use, but 'not until a just compensation to be ascertained in a manner prescribed by law, shall be paid therefor. ' And (4) under the title 'Eminent Domain,' Rev. St. 1887, Sec. 5210, amended by Act March 3, 1903 (7 Sess. Laws, p. 203), tunnels and other means of working mines are defined as 'public uses.'

It is useless to seek, through discussion, the intent of these enactments. They design to grant the owner of mining property the right to run a tunnel to it through the property of other parties, and they denominate such an easement a 'public use.' Have the people of Idaho the right under the delegation of power to them by said section 2338, Rev. St. u.S., or otherwise, to enact such laws? I think this question is answered in the affirmative by the Supreme Court, by its decision of May 15, 1905, in Clark v. Nash, just received in the advance sheets (25 Sup.Ct. 676, 49 L.Ed. 1085). Clark and his codefendants owned an irrigating ditch for their lands. Nash owned land beyond them, and asked to have their ditch so enlarged as to convey water through it to his land. The court says:

'The plaintiffs in error contend that the proposed use of the enlarged ditch across their land for the purpose of conveying water to the land of the defendant in error alone is not a public use, and that therefore the defendant in error has no constitutional or other right to

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