Cardelli v. Comstock Tunnel Co.

• Decision Date: 17 December 1901
• Citation: 66 P. 950,26 Nev. 284
• Parties: CARDELLI et al. v. COMSTOCK TUNNEL CO. et al.
• Court: Nevada Supreme Court

66 P. 950

26 Nev. 284

CARDELLI et al. v. COMSTOCK TUNNEL CO. et al.

Supreme Court of Nevada

December 17, 1901

Appeal from district court, Lyon county; C. E. Mack, Judge.

Action by Orlando Cardelli and others against the Comstock Tunnel Company and others. From an order refusing an injunction plaintiffs appeal. Affirmed.

Torreyson & Summerfield and John Lothrop, for appellants.

W. E F. Deal and W. E. Winnie, for respondents.

FITZGERALD J.

This is an action to determine the plaintiffs' alleged right to one-half of the waters flowing and to flow from the Sutro tunnel, for $2,800 damages for defendants' interference with said alleged right, and for a perpetual injunction and order restraining said defendants from interfering with said alleged right in future. The waters in controversy may, from the testimony in the case, be thus described, as to their source, nature, and situation:

On the 4th of February, 1865, the legislature of the state of Nevada passed an act (Laws 1864-65, c. 26) with the following title "An act granting the right of way, and authorizing A Sutro, and his associates, to construct a mining and draining tunnel." Sections 1 and 2 of said act are as follows:

"Section 1. A. Sutro, and his associates, successors and assigns, shall, for the next fifty years ensuing, from and after the approval of this act, have, possess and enjoy the exclusive privilege of the right of way, and to run, construct and excavate a tunnel running into the Comstock lode, from any point to be selected in the foot hills of the Carson River valley, within the boundaries of Lyon county, and between Corral canon and Webber canon; also, to sink mining shafts along the line or course of said tunnel, and connecting with the same at such points as may be selected by said parties: provided, however, the right of way hereby granted for said tunnel shall in no manner or in any wise interfere with any rights heretofore acquired in and to the said Comstock lode, or any other lode along the line, or in the vicinity of said tunnel, or any rights of property heretofore acquired by any person or corporation: and, provided, further, that said right of way for said tunnel shall in no wise interfere with the rights of miners, according to the laws and customs of this state.

"Sec. 2. That the object of said tunnel being for the purpose of draining the Comstock lode, and all other lodes along its line of direction or course, and for the discovery and development of other lodes through which the same may pass, and for the general purpose of advancing the mining interest of this state, the rate, price or sum of money to be charged for the benefit derived by the persons, companies or corporations along the line of said tunnel, and others who may be benefited by the drainage of their mines or lodes, and freeing the same from the flow of water therein, shall be whatever sum or sums of money, or stock, which may, or shall be agreed upon by and between the corporations, person or persons to be benefited as aforesaid; and the grantee herein, his associates, successors or assigns, and the said A. Sutro, and his associates, successors and assigns, shall have the right to receive and collect all sums of money, or stock which said persons, companies or corporations shall contract to pay; and in default of the payment of the same according to the tenor and condition of such contract or contracts, the said A. Sutro, and his associates, their successors or assigns, shall have the right, and are hereby authorized and empowered to sue for and collect the same in any court of competent jurisdiction in this state."

On the 25th day of July, 1866, an act of congress was approved, having the following title: "An act granting to A. Sutro the right of way, and granting other privileges to aid in the construction of a draining and exploring tunnel to the Comstock lode, in the state of Nevada." Said last-named act is as follows:

"Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that, for the purpose of the construction of a deep draining and exploring tunnel to and beyond the 'Comstock lode,' so called, in the state of Nevada, the right of way is hereby granted to A. Sutro, his heirs and assigns, to run, construct and excavate a mining, draining and exploring tunnel; also to sink mining, working or air shafts along the line or course of said tunnel, and connecting with the same at any point which may hereafter be selected by the grantee herein, his heirs or assigns. The said tunnel shall be at least eight feet high and eight feet wide, and shall commence at some point to be selected by the grantee herein, his heirs or assigns, at the hills near Carson river, and within the boundaries of Lyon county, and extending from said initial point in a westerly direction seven miles, more or less, to and beyond said Comstock lode; and the said right of way shall extend northerly and southerly on the course of said lode, either within the same, or east or west of the same; and also on or along any other lode which may be discovered or developed by the said tunnel.

"Sec. 2. And be it further enacted, that the right is hereby granted to the said A. Sutro, his heirs and assigns, to purchase, at one dollar and twenty-five cents per acre, a sufficient amount of public land near the mouth of said tunnel for the use of the same, not exceeding two sections, and such land shall not be mineral land or in the bona fide possession of other persons who claim under any law of congress at the time of the passage of this act, and all minerals existing or which shall be discovered therein are excepted from this grant; that upon filing a plat of said land the secretary of the interior shall withdraw the same from sale, and upon payment for the same a patent shall issue. And the said A. Sutro, his heirs and assigns, are hereby granted the right to purchase, at five dollars per acre, such mineral veins and lodes within two thousand feet on each side of said tunnel as shall be cut, discovered, or developed by running and constructing the same, through its entire length, with all the dips, spurs and angles of such lodes, subject, however, to the provisions of this act, and to such legislation as congress may hereafter provide: provided, that the Comstock lode with its dips, spurs and angles, is excepted from this grant, and all other lodes, with their dips, spurs and angles, located within the said two thousand feet, and which are or may be, at the passage of this act, in the actual bona fide possession of other persons, are hereby excepted from such grant. And the lodes herein excepted, other than the Comstock lode, shall be withheld from sale by the United States; and if such lodes shall be abandoned or not worked, possessed, and held in conformity to existing mining rules, or such regulations as have been or may be prescribed by the legislature of Nevada, they shall become subject to such right of purchase by the grantee herein, his heirs or assigns.

"Sec. 3. And be it further enacted, that all persons, companies, or corporations owning claims or mines on said Comstock lode or any other lode drained, benefited or developed by said tunnel, shall hold their claims subject to the condition (which shall be expressed in any grant they may hereafter obtain from the United States) that they shall contribute and pay to the owners of said tunnel the same rate of charges for drainage or other benefits derived from said tunnel or its branches, as have been, or may hereafter be, named in agreement between such owners and the companies representing

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