Helena & L. Smelting & Reduction Co. v. Lynch

• Decision Date: 22 July 1901
• Citation: 65 P. 919,25 Mont. 497
• Parties: HELENA & L. SMELTING & REDUCTION CO. v. LYNCH et al.
• Court: Montana Supreme Court

65 P. 919

25 Mont. 497

HELENA & L. SMELTING & REDUCTION CO. v. LYNCH et al.

Supreme Court of Montana

July 22, 1901

Appeal from district court, Jefferson county; M. H. Parker, Judge.

Proceeding by the Helena & Livingston Smelting & Reduction Company against John Lynch and another to condemn a right of way for a ditch and flume. From the judgment assessing the damages the plaintiff appeals. Affirmed.

Cullen Day & Cullen, for appellant.

McHatton & Cotter, for respondents.

BRANTLY C.J.

Proceeding to condemn a right of way for a ditch and flume over the Pine Tree and Katie Lynch lode claims, situate in Jefferson county. The extent of the area sought to be appropriated is a strip of land 4 feet in width and 1,421.6 feet in length upon the Pine Tree lode, and 777.5 feet in length upon the Katie Lynch lode. In the order of condemnation the district court appointed three commissioners to appraise the value of the land taken, and to assess the damages. After duly qualifying the commissioners inspected the premises, heard the allegations and evidence of the parties, and thereupon reported in writing their findings, fixing the value of the way over both claims at $200, and declaring that there were no incidental damages. The defendants, being dissatisfied with the award, appealed to the district court, under the provisions of section 2224 of the Code of Civil Procedure and thereafter, upon a trial in the court, a verdict was returned in their favor, fixing the value of the way over the Katie Lynch lode at $100, with incidental damages of $300, and over the Pine Tree lode at $150, with incidental damages of $800. The jury further found that neither of the claims would be benefited by the ditch and flume. From the judgment entered upon the verdict, and from an order denying a new trial, plaintiff has appealed.

1. Counsel for plaintiff have entered into an elaborate argument to demonstrate that the evidence is insufficient to justify a verdict for more than nominal damages. They insist, first that there is no evidence that the title of defendants is founded upon valid locations under the laws of the United States. The title of the claims was not an issue in the case. In order to maintain this proceeding at all, it was incumbent upon the plaintiff to allege and show title in defendants. Acting upon this theory, and in order to give the district court jurisdiction to entertain its application, the plaintiff alleged in its complaint that defendants were the owners of the claims, and that they had refused to come to an agreement with it by which it might acquire the proposed right of way by the payment of adequate compensation. Defendants, admitting their ownership, and that plaintiff was entitled to a right of way, contested the amount of damages only. Therefore an inquiry into the validity of the title would have been wholly foreign to the issue before the court, and would have shed no light upon the question of value. In the second place, counsel insist that the evidence fails to show that the claims have any value by reason of mineral deposits actually shown to exist therein sufficient in quantity and quality to warrant the expenditure of time and capital in their development. It is true, the evidence discloses that the claims were, when this proceeding was begun, mere prospects, without sufficient development to have more than a speculative value. Nevertheless, their condition was fully shown to the jury, and there was some evidence from which the jury were warranted in finding that they were of sufficient apparent value to justify further development. The evidence further tended to show that the points at which this work could be done most cheaply and conveniently were at the points of discovery, and that the permanent location of the flume and ditch upon the claims would entail much additional cost and inconvenience in the prosecution of development work. The only value a newly-located mining claim has is usually prospective. No person can look beneath the surface, and tell its worth; nor can he say from a superficial examination that it is or is not of value. In determining what is its value, its situation and surroundings must be taken into account, and from these, in connection with what actually appears in the superficial openings or croppings of mineral-bearing rock upon the surface with the opinions of those experienced in mining, a conclusion must be reached. This was the theory of the defendants in the trial of this case, and, though there was a sharp conflict in the statements of fact and opinions of the various witnesses, we would not feel justified in saying that the jury were wrong in finding as they did. This statement is especially applicable to the amounts fixed by the jury as incidental damages. There was a great deal of evidence upon the subject of the additional expense which the defendants would have to bear in order to protect the ditch and flume from injury during exploration. The owners of such claims are entitled to work them according to what, in their own judgment, and that of other experienced miners, is the cheapest and most approved plan, and thus to demonstrate whether or not a mine in fact exists therein. An interference with this plan by the appropriation of a right of way, or the imposition of any other servitude upon the claim, may or may not, according to circumstances, cast an additional burden of expense upon the owner, which may be considered by the jury in awarding damages. In this connection the jury found that the additional burden cast upon the defendants by the presence of the flume and ditch upon their property amounted to the sums fixed by them as incidental damages. While, under the evidence, the total amount might have been much smaller, or even nothing, yet it also might have been found to be much larger. That this court has no power to...