Halmadge v. Village of Riggins, No. 8472

• Court: United States State Supreme Court of Idaho
• Writing for the Court: TAYLOR
• Citation: 78 Idaho 328,303 P.2d 244
• Parties: August HALMADE and Frankle H. Heath, Plaintiffs-Appellants, v. The VILLAGE OF RIGGINS, a Municipal Corporation, Defendant-Respondent.
• Decision Date: 30 October 1956
• Docket Number: No. 8472

Page 244

303 P.2d 244 78 Idaho 328 August HALMADE and Frankle H. Heath, Plaintiffs-Appellants,
v.
The VILLAGE OF RIGGINS, a Municipal Corporation, Defendant-Respondent. No. 8472. Supreme Court of Idaho. Oct. 30, 1956.

Wm. J. Dee, Grangeville, for appellants.

[78 Idaho 329] Wm. H. Foster, Grangeville, for respondent.

Page 245

TAYLOR, Chief Justice.

Plaintiffs (appellants) allege they are the owners of the Black Sand placer mining claim; that the defendant (respondent) without their permission, seized the property upon which the claim is located and has used, and is using, the same as a dump ground and has dumped trash and refuse of all kinds thereon, rendering it useless as a mining claim, to their damage in the sum of $5,000; that they filed a claim therefor, with the village clerk, which was denied by the trustees.

The defendant village, in addition to a general denial, alleges affirmatively that the plaintiffs' purported claim was located upon land belonging to the state of Idaho, and was located under the laws of the United States as though upon federal land; and that the defendant has permission from the state of Idaho to use the land.

The validity of the mining location being thus placed in issue, involving the question as to whether the ground attempted to be covered by the claim was open to location under federal law, the trial court determined to try 'the question of plaintiffs' ownership of, or right to possession of, the land involved' as an equitable, or court issue, prior to the contingent issues of [78 Idaho 330] trespass and damage. We do not consider the propriety of this procedure for the reason that the record does not show any objection thereto by either party. Baird v. Gibberd, 32 Idaho 796, 189 P. 56; Johnson v. Niichels, 48 Idaho 654, 284 P. 840; Radermacher v. Daniels, 64 Idaho 376, 133 P.2d 713; Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686.

Appellants assign as error the finding of the trial court that the place of dumping was situated below the natural high water mark of the Salmon river. The evidence is that the general area involved is located in a wide bend of the river; that a smaller portion of the area consists of wooded ground, from three to ten feet higher than the land lying between this higher ground and the state highway, which runs along the west bank of the river. This lower area 'might be an old river channel'. During high water time each year, a portion of this lower area is occupied by water....