Douglass v. Byrnes

• Decision Date: 18 December 1893
• Citation: 59 F. 29
• Parties: DOUGLASS et al. v. BYRNES et al.
• Court: U.S. District Court — District of Nevada

59 F. 29

DOUGLASS et al. v. BYRNES et al.

United States Circuit Court, D. Nevada.

December 18, 1893

F. M Huffaker and Baker, Wines & Dorsey, for petitioners.

E. L Campbell and W. E. F. Deal, for defendants.

HAWLEY District Judge, (orally.)

The Goodman Gold & Silver Mining Company, a corporation organized and existing under the laws of the state of Nevada, is the owner of the patented mining claim and mining ground, situate in the Devil's Gate and Chinatown mining district, known as the 'Goodman Mine.' J. M. Douglass is the owner and holder of a controlling interest of the capital stock of said corporation, and now is, and for two years last past has been, engaged in working the Goodman mine for his own benefit, in his own individual interest, at his sole expense and outlay, with the knowledge and consent of said corporation. Having such ownership and interest in the Goodman mine, they claim the right, under the provisions of the 'act to encourage the mining, milling, smelting or other reduction of ores in the state of Nevada,' (Gen St. Nev. §§ 256-273,) to condemn the right of way for a tunnel 7 1/2 feet wide by 7 1/2 feet high, from the Contact mine, through five intervening mining claims and locations, viz. the Atlantic, Annie, Red Jacket, South End, and Clinton, to the Goodman mine, and to appropriate so much of each of said intervening mining claims as is and will be necessary for the proper construction and maintenance of said tunnel.

The evidence shows that several years ago a tunnel was run through the Contact mine into the Atlantic ground; that a portion of this tunnel, by lapse of time and nonuse, had become out of repair; that petitioner Douglass claims to be the owner of one-half of the Contact mine; that the defendants Byrnes and Mulville claim to be the owners of the tunnel, from its mouth on the Contact mine, into the Atlantic mine, and they claim that any interest which Douglass may have in the Contact mine is held in trust for them, and is subject to their rights to work the Atlantic mine through the tunnel; that in February, 1892, petitioner Douglass located a tunnel right, under the act of congress, commencing at the mouth of the old tunnel on the Contact mine, and running through the intervening mining claims before mentioned to the Goodman mine; that he cleaned out the old tunnel running into the Atlantic ground, and repaired it, and has constructed a tunnel the balance of the way through the other claims to the line of the Goodman mine; that the defendants Byrnes and Mulville, claiming to be the owners of the Atlantic ground and the old tunnel, commenced an action in ejectment to recover the possession of the tunnel; that thereafter this proceeding was instituted in the state district court, by petitioner Douglass, and subsequently removed to this court, and the Goodman Mining Company was, upon motion of defendants, made a party petitioner herein; that a feasible, economical, direct, and convenient way of running the tunnel is on the line which Douglass selected; that a tunnel could have been constructed a few feet higher or lower, or a few feet on either side thereof, so as not to interfere with the old tunnel, without much more inconvenience or expense, but no place could have been selected without the necessity of running through the ground of various mining claims before reaching the Goodman mine; that the Atlantic, Red Jacket, and South End are patented mining claims, and the Annie and Clinton are not patented.

Section 1 of the act of the legislature of the state of Nevada reads as follows:

'The production and reduction of ores are of vital necessity to the people of this state; are pursuits in which all are interested, and from which all derive a benefit; so the mining, milling, smelting, or other reduction of ores are hereby declared to be for the public use, and the right of eminent domain may be exercised therefor.'

Section 2 provides, among other things, that:

'Any person, company, or corporation engaged in mining, milling, smelting, or other reduction of ores may acquire any real estate, or any right, title, interest, estate, or claim therein or thereto necessary for the purposes of any such business, by means of the special proceedings prescribed in this act.'

Section 6 provides that:

'Upon the hearing of the allegations and proofs of the said parties, if the said court or judge shall be satisfied that the said lands, or any part thereof, are necessary or proper for any of the purposes mentioned in said petition, then such court or judge shall appoint three competent and disinterested persons as commissioners.'

Other sections of the act provide how the proceedings shall be commenced, what shall be set forth in the petition, who shall be made defendants, how the commissioners shall be selected, the manner in which they shall proceed, etc.

The question whether the defendants Byrnes and Mulville are the owners of the tunnel right of way, from its month on the Contact mine into the Atlantic ground, need not be determined at this stage of the proceedings. The act contemplates that the parties having any right, title, or interest in the lands sought to be condemned shall make proof of their interest in the land and of its value before the commissioners. In fact, this court cannot, at the present time, determine any question of title to any of the mining claims, for it may be that other parties who have not appeared and answered the petition will appear and assert some right, title, or interest before the commissioners, if any are appointed. Section 3 of the act provides that:

'The persons in occupation of said tract or tracts of land, and those having any right, title, or interest therein, whether named in the petition or not, shall be defendants thereto, and may appear and show cause against the same, and may appear and be heard before the commissioners herein provided for, and in proceedings subsequent thereto, in the same manner as if they had appeared and answered said petition.'

The court at the present time can only be called upon to determine whether 'the said lands, or any part thereof, are necessary or proper for any of the purposes mentioned in said petition,' as provided in section 6, and whether the act authorizes such lands to be condemned for the purposes set forth in the petition. The constitutionality of the act, and the fact that the business of mining is a 'public use' in this state, is settled and determined by the decisions of the supreme court in Mining Co. v. Seawell, 11 New. 394, and Mining Co. v. Corcoran, 15 Nev. 147. See, also, Lewis, Em. Dom. § 1184; Mills, Em. Dom. § 20.

The power of the legislature having been fully recognized and sanctioned, the purpose of the act should not be hampered by any narrow or technical objections. The importance of encouraging the mining industry of this state must be kept in view. This was the object, intent, and purpose of the legislature in passing the act, and its wisdom, policy, and expediency was thereby determined. A reasonable, fair, just, broad, and liberal view should be taken by the court in interpreting its provisions. Defendants claim that the petition should be denied because the evidence shows that there were other places in the vicinity as well adapted as the one selected by Mr. Douglass, where the tunnel could have been run without interfering with the old tunnel on the Contract and Atlantic mining claims. The testimony upon this point is not relevant to the real issues in the case. A large discretion is necessarily invested in petitioners in the selection of the route for the tunnel. It must be presumed that self-interest, if nothing else, will dictate that they would not abuse this power. It is not within the power of the court to absolutely control the exercise of this discretion in selecting the land to be condemned. It will not be reviewed by the court unless it appears that they have exceeded the authority of the statute, and have acted in bad faith. In Mining Co. v. Corcoran, there is a complete...