Camp Carson Min. & Power Co., Inc. v. Stephenson
| Decision Date | 06 June 1917 |
| Citation | 84 Or. 690,165 P. 351 |
| Parties | CAMP CARSON MINING & POWER CO., INC., v. STEPHENSON ET AL. [*] |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Union County; J. W. Knowles, Judge.
Suit for injunction by the Camp Carson Mining & Power Company Incorporated, against Miles Stephenson and another. From a decree dismissing the suit, the plaintiff appeals. Decree of lower court reversed, and decree entered for plaintiff.
This is a suit to enjoin trespasses upon real property. The complaint states, in effect, that the plaintiff, Camp Carson Mining & Power Company, is an Oregon corporation, and the owner and entitled to and in the possession of a group of placer mining claims, containing 1,440 acres of unpatented land, in Union county, Or., commonly known as the Camp Carson Mines, of which tract 290 acres are particularly described; that it is the owner of the right to use all the water of the Grande Ronde river, diverted at a point on the northwest quarter of the northwest quarter of section 23 in township 6 south of range 36 east of the Willamette meridian, and conducted in a ditch and flume to a point near the center of section 15, in that township and range, where it is and for a long time has been used in operating mines; that the defendants, M. A Stephenson and H. W. ReDell, in the fall of 1914 unlawfully tore down a house belonging to the plaintiff and converted the lumber to their own use; that on April 15, 1915, they unlawfully cut the dam, whereby the water was diverted from the river into the ditch and flume referred to, and converted the lumber in the flume to their own use; that they unlawfully cut a ditch across a road owned by the plaintiff and threaten to continue such trespasses. The answer controverts the material averments of the complaint, and alleges, in effect, that the house referred to stood on their mining ground; that they were the owners of the ditch and flume mentioned, and had the legal right to intermeddle therewith and to remove the lumber therefrom; and that the ditch which interfered with the road was dug on their own mining land, and the excavation was covered with a bridge. The reply put in issue the allegations of new matter in the answer, whereupon the cause was tried, resulting in a decree dismissing the suit, and the plaintiff appeals.
Turner Oliver, of La Grande, for appellant. J. D. Slater, of La Grande, for respondents.
MOORE J. (after stating the facts as above).
The evidence shows that on October 18, 1907, the Indiana Mining Company, an Oregon corporation, duly appropriated from the Grande Ronde river, at a point in the northwest corner of section 23 in township 6 south of range 36 east of the Willamette meridian, about 600 inches of water, miners' measurement, which was conducted northwesterly by means of a ditch and flume and used in section 9 of that township and range in operating a quartz mill on land known as the Golden Star mine. The Grande Ronde Milling & Power Company, an Oregon corporation, on January 29, 1910, and March 4th of that year, filed amended notices of location of mining claims, showing a selection of 360 acres of land in section 15 and 60 acres in section 10, in the township and range specified, which location seems to conflict with that of the Indiana Mining Company. The latter corporation, on November 1, 1910, executed to Burt German a deed conveying, inter alia:
"Those certain quartz mining claims known, located, and recorded as the Golden Star, Mayflower, Wallowa, and Leasia, situated on the Grande Ronde river, about one mile above the mouth of Clear creek in what is known as the Camp Carson mining district, in Union county, Or.; * * * also that certain ditch and water right connected therewith, which said ditch taps the Grande Ronde river and diverts water therefrom, on section 9, township 6 south, range 36 east, Willamette meridian, which said ditch and water right is used for power purposes in operating the machinery connected with said mining property."
Burt German and his wife, on November 16, 1910, executed to the Hot Springs Copper Company, an Oregon corporation, a deed conveying to it, inter alia, the property last above described. The latter corporation was on May 22, 1912, duly adjudged to be a bankrupt by consideration of the federal court of Oregon, and W. A. Shoemaker was appointed and duly qualified as trustee for the estate.
August Hug, as sheriff of Union county, Or., on April 29, 1913, by virtue of a decree and order of sale issued in a suit foreclosing miners' liens wherein H. A. Shropshire was plaintiff and the Oregon Mining & Milling Company and the Grande Ronde Mining & Power Company, corporations, were defendants, sold at public auction to that plaintiff the property of the defendants known as the Camp Carson Mines, in sections 4, 5, 9, 10, 15, 16, 21, 22, and 28 in township 6 south of range 36 east of the Willamette meridian.
W. A. Wilson and Frank F. Turner on June 15, 1914, filed a notice of appropriation of 1,000 inches of water, miner's measurement, from Grande Ronde river, to be diverted at the northwest corner of section 23, in that township and range, and conducted by a ditch and flume to a point on Tanner creek near the center of section 15 in such township. The notice contained a clause as follows:
"And it is the intention of the undersigned to use as far as possible the old Indiana ditch, now abandoned."
H. A. Shropshire on August 12, 1914, executed to H. T. Harvey a deed of all the property so conveyed to him by the sheriff of Union county, Or., particularly describing each tract of land and the water right used in connection therewith. H. T. Harvey and wife, on August 31, 1914, deeded to the Camp Carson Mining & Power Company, the plaintiff herein, all of such property. The plaintiff on September 24, 1914, applied to the state water board of Oregon to appropriate from the Grande Ronde river water to be used on its mining claims and conducted in the ditch and flume constructed by the Indiana Mining Company.
W. A. Wilson and Frank F. Turner on September 30, 1914, executed to the plaintiff a deed transferring all their right to the use of the water of the river which was initiated by the notice given by them June 15th of that year.
W. H. Shoemaker, the trustee in bankruptcy of the Hot Springs Copper Company, pursuant to authority of the referee and in consideration of $50, of which $30 was evidenced by a promissory note, executed to the defendants herein on October 31, 1914, a deed purporting to transfer all the bankrupt's right in and to the ditch and flume constructed by the Indiana Mining Company.
The foregoing comprises a brief statement of the muniments of title of the respective parties which were received in evidence and hav e been arranged in chronological order. It is maintained by defendants' counsel that the decree rendered in the suit to foreclose the miners' liens and the order of sale issued thereon, whereby the sheriff of Union county, Or., undertook to sell and convey to H. A. Shropshire the mining property described in some of these conveyances, was ineffectual for any purpose, and that, this being so, the plaintiff is not entitled to equitable intervention.
It will be remembered that this is a suit to enjoin alleged trespasses committed upon real property of which the plaintiff was in the undisputed possession, asserting ownership and securing the occupancy thereof by a conveyance of the land, no part of which is claimed by either of the defendants, except 60 acres hereinafter specified. In Ricard v. Williams, 7 Wheat. 59, 107, 5 L.Ed. 398, it was held that the possession of land by a party claiming it as his own in fee was prima facie evidence of his ownership and seisin of the inheritance. In deciding that case Mr. Justice Story says:
In a controversy before a judicial tribunal relating to land prior possession of the premises constitutes prima facie evidence and affords sufficient strength of the plaintiff's title to entitle him to relief against a mere trespasser who entered without right. McEwen v. City of Portland, 1 Or. 300; Oregon Ry. & Nav. Co. v. Hertzberg, 26 Or. 216, 37 P. 1019; Browning v. Lewis, 39 Or. 11, 64 P. 304; Sommer v. Compton, 52 Or. 173, 96 P. 124, 1065; Todd v. P. Ry. & Nav. Co., 59 Or. 249, 110 P. 391, 117 P. 300; Carroll v. McLaren, 60 Or. 233, 118 P. 1034; Friendly v. Ruff, 61 Or. 42, 120 P. 745; Kingsley v. United Rys. Co., 66 Or. 50, 133 P. 785; Parker v. Wolf, 69 Or. 446, 138 P. 463.
It is unnecessary to consider the decree in the suit to foreclose the miners' liens, pursuant to which possession by mesne conveyances was given to the plaintiff, and, such being the case, it is entitled to maintain this suit against the defendants, whose answer does not controvert such right of possession, except as to 60 acres of mining land.
The testimony shows that the plaintiff, having...
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