Conway v. Fabian

• Decision Date: 29 April 1939
• Docket Number: 7787.
• Citation: 89 P.2d 1022,108 Mont. 287
• Parties: CONWAY et al. v. FABIAN et al.
• Court: Montana Supreme Court

89 P.2d 1022

108 Mont. 287

CONWAY et al. v. FABIAN et al.

No. 7787.

Supreme Court of Montana

April 29, 1939

Appeal from District Court, Fifth Judicial District, Beaverhead County; Albert Besancon, Judge.

Action in equity by George B. Conway and another against Mary M Fabian, executrix of the last will and testament of Joseph M Fabian, deceased, for whom she was substituted as defendant and others, to try title to mill tailings deposited on placer mining ground claimed by defendants, recover damages for entry on, removal of, and waste of, such tailings, and enjoin trespasses on plaintiffs' property by defendants, who filed a cross-complaint to quiet title to placer mining claims on which the tailings were situated. From the judgment rendered, defendants appeal and plaintiffs cross-appeal.

Defendants' motion to dismiss the cross-appeal overruled, and judgment modified and affirmed as modified.

S. P. Wilson, of Deer Lodge, for appellants.

John Collins, W. J. Cushing, and Gilbert, Gilbert & McFadden, all of Dillon, for respondents.

RUDOLPH NELSTEAD, District Judge (sitting in place of STEWART Justice, disqualified).

This is an appeal from a judgment of the district court of Beaverhead county. The action involves the ownership of a quantity of mill tailings known as the Greenwood Dump, deposited upon certain placer mining ground claimed by defendants. The trial court in its findings of fact denominated the action as one in trespass to try title to personal property on the part of plaintiffs, and the right of possession, interest and claims of defendants to mining rights and locations. It was tried as an equity case by the court without a jury.

The amended complaint alleges that plaintiffs are the owners and in possession of the mill tailings in question, situated on the west side of Trapper Creek in Beaverhead county, stored upon lands that slope to the northward and eastward and are kept in place on their lower sides by means of log cribbing constructed by plaintiffs and their predecessors in interest when the tailings were deposited. The amended complaint further states that defendants for more than a year last past, without the consent of plaintiffs, repeatedly entered upon the tailings, carried away large quantities thereof and trampled down and wasted large quantities of the remainder. As a result of defendants' actions plaintiffs claim damages in the sum of $1,000, and ask that defendants be enjoined from continuing the trespass on their property.

A demurrer interposed to the amended complaint was overruled and defendants thereupon filed their answer, denying the allegations of the amended complaint, and setting out affirmative defenses, as follows: (1) Estoppel resulting from previous litigation involving the property in question, and that by reason of the judgment in the former case, and because of having elected to pursue a different remedy, plaintiffs are estopped to urge the present case; (2) that plaintiffs' cause of action is barred by subdivisions 2 and 3, section 9033, Revised Codes of 1935; (3) adverse possession by defendants for the period of the statute of limitations of the real estate of which the mill tailings are a part; (4) laches by plaintiffs in their long delay in asserting claim to the tailings by this particular action; and (5) a cross-complaint whereby defendants sought to have their title to the placer mining claims on which the tailings were situated, known as the Bird and Josephine Placers, quieted against all adverse claims by plaintiffs.

The plaintiffs by reply denied all of the affirmative matter in the answer, and by cross-complaint alleged affirmatively that defendants have no interest or right of possession in the land on which the tailings are situated, by reason of the fact that the Land Department of the United States in the year 1930 rejected the defendants' application for patent on the Bird Placer on the ground that no mineral discovery had been made thereon. The decisions of the Register of the United States Land Office in Montana, of the Commissioner of the General Land Office, and of the Secretary of the Interior are attached as exhibits to the reply and answer to the cross-complaint. Defendants moved to strike this defense from the reply and answer to the cross-complaint, which motion was sustained by the trial court. Thereafter plaintiffs were permitted by court order to amend the reply and answer to the cross-complaint by alleging that neither the defendants nor their predecessors in interest ever made a discovery of valuable minerals of any kind or character upon either the Bird Placer or the Josephine Placer, and that no valuable mineral of any kind or character exists, or ever existed, upon either of such mining claims. A demurrer by the defendants to the amendment was overruled, and thereupon defendants filed their reply to the answer to the cross-complaint.

At the request of the parties the trial court made findings of fact and conclusions of law, which may be briefly summarized as follows:

From 1881 to 1898 Hecla Consolidated Mining Company was the owner of certain quartz mines near the head of Trapper Creek in Beaverhead county, as well as the owner and operator of a concentrating mill situated at Greenwood, on what is known as Everest Millsite No. 1, on the creek in question, working the mines and concentrating ores therefrom. The company had located four millsites, one of which was designated as Everest Millsite No. 1, which was later patented and is now owned by plaintiffs, concerning which and the tailings located thereon there is no dispute in this action. It also located Everest Millsites Nos. 2, 3 and 4, but no patent was ever issued on any of them, and these three sites were later restored to the public domain. In the operation of the mill the high grade ores were saved as concentrates and the residue deposited by water flowing below the mill in the form of tailings. The tailings contain mineral values, which fact was then known to Hecla and its officers, but the metallurgical processes at that time and the primitive form of milling machinery then available were not sufficiently efficient to recover such values. The trial court found that, with the intent to impound and preserve the tailings in question until by improved metallurgical processes and the invention of more efficient machinery the mineral values remaining might be recovered, the Hecla, as such tailings were deposited, constructed bulkheads to impound the same, and continued to raise such bulkheads as the tailings dump advanced in height. The bulkheads were constructed of logs, the space between the logs being chinked and thicknesses of burlap installed in front so that water might escape therefrom, but the tailings remain impounded within the cribbing. In addition to the bulkheads the cribbings were tightened with logs extended inwardly and imbedded in the tailings as they were deposited. A large amount of money was expended in these constructions. During the course of the years after 1898 the owner and its successors in interest down to the present plaintiffs continued to expend money in labor and material in the repair of the cribbings for the purpose of preventing the tailings from escaping therefrom.

The trial court further found that, since the deposit and impounding of the tailings in question, plaintiffs and their predecessors in ownership and interest have been in actual, open, continuous and exclusive possession of all of the Greenwood Dump, and that they have not at any time abandoned the same. In the operation of the concentrating plant and the conveyance of the tailings by force of water flowing in a flume causing the tailings to be impounded within the cribbed enclosures, as heretofore described, a part thereof, particularly that consisting of the finer particles, was lost to the operators and spread upon and became a part of the soil in the surrounding area. In the course of time the logs, chinking and burlap rotted in many places, causing a certain amount of the tailings to be washed down by water of the creek and by rain, spreading the same over the lands below the enclosures. At the present time there remain impounded approximately 75,000 tons of tailings, of the value of one dollar per ton, which are in practically the same condition as when deposited by the operator, excepting that they have settled and reached such an angle of repose as to render the cribbing protection no longer a necessity.

From the findings of the trial court it further appears that in 1911 the Darby Mining Company, one of the plaintiffs, became the owner of a one-third interest in the Greenwood Dump, and subsequently, in 1923, the plaintiff Conway purchased the remaining two-thirds interest. The plaintiffs and their predecessors in interest have been continuously in possession of the tailings. It further appears from the findings that during the two years preceding the commencement of the action defendants repeatedly entered upon, walked and tramped over the tailings, resulting in a considerable amount thereof becoming lost in the waters of the creek. This amount was determined by the trial court to be thirty tons.

The claim of defendants to the tailings in question is predicated upon the assertion that they are in possession of the Bird and the Josephine Placers, and that the Greenwood Dump is not personal property but a portion of the real estate constituting these placers. The findings disclose that defendants' predecessors located the Bird Placer in 1919 and the Josephine Placer in 1924, by compliance with statutory procedure and regulations for the location of placer mining claims; that precious metals and mineral values were discovered by the locators of each of such placers, but that...