Himrod v. Ft. Pitt Min. & Mill. Co.

• Decision Date: 06 January 1915
• Docket Number: 4094.
• Parties: HIMROD v. FT. PITT MIN. & MILL. CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

220 F. 80

HIMROD v. FT. PITT MIN. & MILL. CO. ^[1]

No. 4094.

United States Court of Appeals, Eighth Circuit.

January 6, 1915

C. C Parsons, Jr., of Salt Lake City, Utah, and F. L. Collom, of Idaho Springs, Colo. (Charles C. Parsons, Sr., of Salt Lake City, Utah, on the brief), for plaintiff in error.

Caldwell Martin, of Denver, Colo. (Charles W. Waterman, of Denver Colo., on the brief), for defendant in error.

Before CARLAND, Circuit Judge, and T. C. MUNGER and YOUMANS District judges.

T. C MUNGER, District Judge.

This action for the recovery of damages occasioned by the deposit of rock and debris by plaintiff in error upon the property of the defendant in error, was formerly before this court, and the opinion of the court is published in Himrod v. Ft. Pitt Mining & Milling Co., 202 F. 724, 121 C.C.A. 186, to which reference may be had for a statement of the essential facts.

Upon the second trial, the deed and mining lease referred to in the former opinion were received in evidence. The lease provided for certain mining and tunnel work to be done by plaintiff in error and another, in a portion of the Oneida lode claim, for two years after August 15, 1894. The deed, which was executed to the plaintiff in error and his associate and their assigns at the same time as the lease, recited the ownership of distinct lode claims by the parties, the desire of the grantees to extend the No. 2 tunnel or level of the Oneida mine into their own claims 'for the purpose of working and draining said Lamartine and other mines through said level, tunnel, or adit so run or to be run,' and then granted to them a perpetual right of way through the Oneida level No. 2 for the purpose of driving the tunnel or level into the Lamartine or other mines owned by them. It also granted a perpetual right of way through the tunnel, when constructed, with the right to maintain and operate it for the purpose of working and mining all lodes and mines beyond the boundaries of the Oneida claim, that the grantees might own or acquire, and to place and maintain in the tunnel, tram tracks, air, water, and steam pipes, electric light and power wires, telephone wires, electric lamps, and telephones. The right was also given to conduct the water through the tunnel from the mines of the grantees and to operate cars and trains in the tunnel 'together with all and singular such other and further rights in and to said tunnel, adit, or level, or the right of way hereby granted, as will enable the (grantees) to work the mines they now own or may hereafter acquire by lease, deed, or location, through the said tunnel, adit, or level in such manner as they shall deem expedient or proper. ' The grantors reserved in the deed the right to work the Oneida and other mines through the tunnel, to move over the railway tracks therein its timbers, waste, and ore, and to cut openings in the bottom of the tunnel to furnish air to other workings. The plaintiff in error succeeded to the rights of his associate grantee and cut the tunnel through the Oneida claim to the mines owned by him, depositing at the mouth of the tunnel, which opened on the surface of the Oneida claim, rock and waste from the Oneida and from his own claims.

At the close of the evidence the court instructed the jury that the plaintiff in error had no right to deposit, upon the surface of the Oneida claim, rock and waste brought from the tunnel or mines beyond the Oneida claim, and the jury returned a verdict against the plaintiff in error. The instructions of the court, denying the plaintiff in error the right of dumpage on the surface of the Oneida claim, are claimed to be erroneous, because the grant of that right was implied in the deed, as it was reasonably essential to carrying on his mining operations through the tunnel, and because the grantor had deposited the waste from the Oneida mine at the mouth of the tunnel before the making of the deed, and because the plaintiff in error for many years after the execution of the deed had used that place for the deposit of waste from his mines without objection on the part of the grantor.

In every private grant there passes by implication that which is reasonably necessary to the enjoyment of the thing granted. Washburn on Easements (4th Ed.) pp. 49-54. Hence a grant of the minerals under the surface of the land implies the right to mine them by the sinking of shafts or boring of tunnels and the removal of them through such openings. Shep. Touch. 89-100; Cardigan v. Armitage, 2 Barn. & Cress. 197; Rowboltam v. Wilson, 8 H.L.Cases, 38; Ingle v. Bottoms, 160 Ind. 73, 66 N.E. 160; Ewing v. Sandoval C. & M. Co., 110 Ill. 290; Marvin v. Brewster Iron Mining Co., 55 N.Y. 538, 14 Am.Rep. 322; Baker v. Pittsburg C. & W.R. Co., 219 Pa. 398, 68 A. 1014; Hooper v. Dora Coal Min. Co., 95 Ala. 235, 10 So. 652; 2 Lindley on Mines, Sec. 813.

Because a mine may not be worked practically without other facilities, the grant of the minerals implies the right to construct and operate roads, tram and railway tracks upon the surface for the use of the mine (Dand v. Kingscote, 6 M. & W. 174; Marvin v. Brewster Iron Min. Co., supra; Porter v. Mack Mfg. Co., 65 W.Va. 636, 64 S.E. 853; Consolidated Coal Co. v. Savitz, 57 Ill.App. 659), to build air shafts, erect machinery, store water for the use of the engines, and in general to do that which is reasonably necessary for the use of the thing granted (Dand v. Kingscote, supra; Fowler v. Delaplain, 79 Ohio St. 279, 87 N.E. 260, 21 L.R.A. (N.S.) 100; Williams v. Gibson, 84 Ala. 228, 4 So. 350, 5 Am.St.Rep. 368; Wardell v. Watson, 93 Mo. 107, 5 S.W. 605; Turner v. Reynolds, 23 Pa. 199; Gordon v. Million, 248 Mo. 155, 154 S.W. 99; Gordon v. Park, 219 Mo. 600, 117 S.W. 1163; Armstrong v. Maryland Coal Co., 67 W.Va. 589, 69 S.E. 195; 2 Barr. & Ad. Mines and Mining, 576). That which is convenient does not pass by such grant, unless it is also reasonably necessary. Cardigan v. Armitage, supra; Midgely v. Richardson, 14 M. & W. 595; Marvin v. Brewster Iron Min. Co., supra; Ingle v. Bottoms, supra; Williams v. Gibson, supra; Anderson v. Cowan, 125 Iowa, 259, 101 N.W. 92, 68 L.R.A. 641, 106 Am.St.Rep. 303; Humphreys v. McKissock, 140 U.S. 304-313, 11 Sup.ct. 779, 35 L.Ed. 473; Webber v. Vogel, 159 Pa. 235, 28 A. 226; Hooper v. Dora Coal Min. Co., supra.

It is not requisite to an implied grant that there is an absolute physical necessity for the right demanded. It is said in Pettingill v. Porter, 8 Allen (Mass.) 1, 85 Am.Dec. 671, there may be a way by necessity when another cannot be got or made without unreasonable labor and expense, and that in determining the question the jury may consider the comparative value of the land and the probable cost of such ways, and that--

'the word 'necessary' cannot * * * be limited to absolute physical necessity. If it were so, the way in question would not pass with the land, if another way could be made by any amount of labor and expense, or by any possibility. If, for example, the property conveyed were worth but...