Byrnes v. Douglass

• Citation: 42 P. 798,23 Nev. 83
• Decision Date: 11 December 1895
• Docket Number: 1,441 [1]
• Parties: BYRNES et al. v. DOUGLASS.
• Court: Nevada Supreme Court

42 P. 798

23 Nev. 83

BYRNES et al. v. DOUGLASS.

No. 1,441 ^[1]

Supreme Court of Nevada

December 11, 1895

Syllabus by Bigelow, C.J.

1. In an action of ejectment, where it is shown that, subsequent to the commencement of the action, the defendant had begun proceedings for condemnation of the premises in dispute, and that in those proceedings an order had been made authorizing him to retain possession thereof during the pendency of the proceedings, which were still pending, such order is a defense to the action.

2. The petition for condemnation gave the court jurisdiction to make the order, and consequently, even if erroneous, it is not open to collateral attack.

3. It is the averments of the petition, and not proof of them, that confers jurisdiction upon the court.

4. A party who takes a lease of a mine of which a tunnel is claimed and held as a part, and under that lease enters into possession of both mine and tunnel, is estopped to deny the title of his lessors to the tunnel; and his assignee of the lease is equally estopped.

Appeal from district court, Storey county; Richard Rising, Judge.

Action by James D. Byrnes and others against J. M. Douglass. Judgment for defendant, and plaintiffs appeal. Reversed.

Action of ejectment to recover possession of the Atlantic Consolidated Mining Claim, and of a tunnel known as the "Atlantic Consolidated Tunnel," which begins some 300 feet from said claim, and runs into and through the same. The complaint alleges plaintiffs' ownership of the premises, ouster by the defendant, and that the tunnel was constructed by plaintiffs' predecessors in interest in the mine, for the purpose of prospecting, developing, and working the same, and that it is appurtenant to and a part of said mining claim. The answer admits plaintiffs' ownership of the mine, but denies ouster therefrom. It admits that the tunnel was constructed by plaintiffs' grantors alleging that it began on what was known as the "Cadiz" claim, then belonging to said grantors, and ran thence into the Atlantic claim, but that they had abandoned and forfeited said Cadiz claim, and had abandoned the tunnel. It alleges that the defendant's grantors had relocated the Cadiz, under the name of the "Contact," and that defendant had taken possession of the tunnel for the purpose of extending it into another claim owned by him, and denies that it is appurtenant to or a part of the Atlantic claim. Defendant also alleges that he has located the same as a tunnel right under the laws of congress, and he sets up a right to the possession of the part passing through the Atlantic claim under an order made by the judge of the district court of Nevada in and for Lyon county, in condemnation proceedings commenced by him in said court against plaintiffs, for the purpose of condemning a right of way through the claim, authorizing him to take possession of the same during the pendency of the proceedings, which were still pending. The evidence shows that the tunnel was originally partly constructed in 1862 for the purpose of obtaining a supply of water for Silver City, and, after its use for that purpose was abandoned, its owners used it for the purpose of prospecting and working the Atlantic claim, then belonging to them; and that it has always since been in the possession of the owners of said claim until defendant took possession of it, and has always been claimed by them as a part of said mine. The Atlantic claim has been patented, but no mention of the tunnel is made in the patent. In 1876 the owners of the Atlantic located the ground upon which the mouth of the tunnel was situated, under the name of the Cadiz. The annual work not having been done on the Cadiz, it was relocated January 22, 1887, by T. P Mack, but he did no work upon it, and it again became open to location. In March, 1890, the then owners of the Atlantic leased the mine to W. H. Stanley, and play him in possession of the same, including the tunnel. In July, 1890, the Cadiz ground was again relocated by C. E. Brown, under the name of the "Contact," and he, in June, 1891, conveyed the same to Stanley and one Millevich. In September, 1891, the defendant purchased from Stanley his interest in the unexpired lease and his half interest in the Contact ground. Defendant then took possession of both claims and of the tunnel. The court found that the tunnel was not appurtenant to the mine, that the plaintiffs were not entitled to its...