Goldfield Consol. Milling & Transp. Co. v. Old Sandstrom Annex Gold Mining Co.

Decision Date22 July 1915
Docket Number2139.
Citation150 P. 313,38 Nev. 426
CourtNevada Supreme Court

Appeal from District Court, Esmeralda County; Peter J. Somers Judge.

Condemnation proceeding by the Goldfield Consolidated Milling & Transportation Company against the Old Sandstrom Annex Gold Mining Company and others. From an interlocutory order defendants appeal. Affirmed.

D. H Kehoe, of Goldfield, for appellants.

Hoyt, Gibbons & French, of Reno, and Benj. J. Henley, of Goldfield, for respondent.


Respondent instituted proceedings in the district court of Esmeralda county to condemn portions of certain patented mining claims belonging to appellants. From an order of the court made upon the hearing of certain preliminary questions, an appeal has been taken.

The respondent alleges in its complaint that it is organized for the purpose of milling, and reducing by other methods, gold, silver, and other ores, and that it now is, and for a long time past has been, engaged in the carrying on of the said business of milling and reducing ores; that the said respondent is authorized by the laws of the state of Nevada to condemn, for use in the carrying on of its business, the rights sought to be condemned; that in the operation of the said mill there are discharged therefrom large quantities of pulverized rock and earth, commonly known as "tailings," without the discharge of which it is impossible to operate the said mill, and that the said tailings are valuable and are being conserved by respondent for re-treatment; that, in the continued operation of the said mill, all of the lands owned by the respondent and accessible for their deposit became covered with the said tailings, and that it became necessary for the respondent to enter upon and use the lands of other persons for the deposit and storage of the said tailings; that large quantities of the said tailings are deposited upon lands described in the complaint, within retaining dams erected by the respondent for their conservation, and that it is necessary to its business that the respondent be given the right by condemnation to use the surface of said lands as a storage place for the said tailings, and as a place for the disposal, treatment, and reduction thereof; that the use to which the respondent seeks to put the surface of the said land is a more necessary use than the use to which the said surface of the land is now appropriated. The respondent alleges that it is not desirous of harassing the appellants or interfering with their mining operations, and offers, in the event an order of condemnation is entered in the action, that such order may provide that appellants may enter upon the premises and conduct mining operations, with due regard to the preservation and protection of the tailings of the respondent.

The answer of the appellants admits their ownership of the lands in issue, and denies most of the material allegations of the complaint, denies that there is any necessity for the condemnation, and alleges that the tallings which have been deposited upon the lands by the respondent were abandoned by the respondent and are now the property of appellants.

Section 5614, Revised Laws, provides for the determining by the court or judge, "before condemnation," of three questions, viz.:

(1) Is the use to which the property is to be applied a use authorized by law?

(2) Is the taking of the property sought to be condemned necessary to such use?

(3) If the land is already appropriated to a public use, is the use to which it is sought to apply it a more necessary public use?

After the issues in the case had been formed, counsel for appellants served notice upon respondent that he would on December 6th apply to the court to set down for hearing by the court questions 1 and 2, above stated. While the record is silent as to the order made on that day, it is evident that the court made an order setting the matter for hearing on January 21st, for at that time counsel for appellants made an application to dismiss his motion of December 6th to set the matter for hearing, and upon objection thereto it was denied, and the court proceeded to hear the preliminary questions in the proceeding.

We do not think appellants could have dismissed their motion. The motion had served its purpose. The court had acted upon it. All that could have been done would have been for the court to have vacated its order setting the matter for hearing, which the court was not asked to do.

Objection was made to the disposal of question 3 by the court, since it was not included in the notice to set it for hearing, and the overruling of the objection is assigned as error. Under the circumstances of this case, the three questions disposed of are so interwoven as to enable the court to dispose of them all upon substantially the same evidence. When the court announced its intention of disposing of question 3 at the same time as the other questions, appellants could have moved for a continuance if they deemed further time necessary. But since no continuance was requested, and particularly in view of the fact that substantially the same evidence was necessary to enable the court to pass upon all three questions, we are unable to see how appellants could possibly have been prejudiced. Why should not the court dispose of all of the matters at one time? The determination of any one of these questions against respondent would necessarily have terminated the proceedings and obviated the necessity of taking testimony as to damages. It seems to us that the reason for the rule against splitting causes of action applies with equal force in this situation:

"The principle which prevents the splitting up of causes of action, and forbids double vexation for the same thing, is a rule of justice, and not to be classed among technicalities." Dutton v. Shaw, 35 Mich. 431.

It has been held to be the better practice to hear the preliminary matters first. Balto.

& O. R. Co. v. P. W. & Ky. R. Co., 17 W.Va. 847.

In determining if the use to which respondent seeks to put the land sought to be condemned is one authorized by law, it is necessary to consider the policy of the state toward the mining and milling of precious metals. And right here it may be said that mining will become a "lost art" unless the ores produced from the mines can be economically reduced, for mining is dependent upon the facilities for treating the ore economically.

By section 1, art. 10, of the Constitution of the state, as originally adopted, the mines of the state were exempt from taxation. While this section has been amended so as to permit the assessing for the purpose of taxation of all patented mining claims, still every patented mining claim upon which $100 worth of work is done annually is exempt from taxation. Stats. 1913, c. 83, p. 106. The very purpose of the change was to stimulate mining. Section 2456, Revised Laws, reads:

"* * * Mining for gold, silver, copper, lead, cinnabar, and other valuable mineral, is the paramount interest of this state, and is hereby declared to be a public use."

Section 2458, Revised Laws, provides that any citizen of the United States may enter upon any unfenced and unimproved land (except mining claims) held in private ownership, and prospect thereon for various precious metals.

Section 5606, Revised Laws, provides, inter alia, that:

"The right of eminent domain shall be exercised in behalf of the following public uses: * * * (6) Roads, railroads, tramways, tunnels, ditches, flumes, pipes and dumping places to facilitate the milling, smelting, or other reduction of ores, or the working of mines, and for all mining purposes; outlets, natural or otherwise, for the deposit or conduct of tailings. * * *"

Can there be any doubt as to the policy of the state toward the mining and milling industry of the state? And who can doubt the wisdom of this policy, when we stop to consider the prevailing conditions in the state?

The language of the Supreme Court of the United States, in Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1087, 4 Ann. Cas. 1171, is applicable to the case at bar. It is there said:

"In some states, probably in most of them, the proposition contended for by the plaintiffs in error would be sound. But whether a statute of a state permitting condemnation by an individual for the purpose of obtaining water for his land or for mining should be held to be a condemnation for a public use, and therefore a valid enactment, may depend upon a number of considerations relating to the situation of the state and its possibilities for land cultivation, or the successful prosecution of its mining or other industries. Where the use is asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use is founded upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of the state, where the right of condemnation is asserted under a state statute, we are always, where it can fairly be done, strongly inclined to hold with the state courts, when they uphold a state statute providing for such condemnation. The validity of such statutes may sometimes depend upon many different facts, the existence of which would make a public use, even by an individual, where, in the absence of such facts, the use would clearly be private. Those facts must be general, notorious, and acknowledged in the state, and the state courts may be assumed to be exceptionally familiar with them. They are not the subject of judicial investigation as to their existence, but the local courts know and appreciate them. They understand the situation which led to the demand

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