Nenzel v. Rochester Silver Corporation

• Decision Date: 05 October 1927
• Docket Number: 2756.
• Citation: 259 P. 632,50 Nev. 352
• Parties: NENZEL et al. v. ROCHESTER SILVER CORPORATION et al.
• Court: Nevada Supreme Court

259 P. 632

50 Nev. 352

NENZEL et al. v. ROCHESTER SILVER CORPORATION et al.

No. 2756.

Supreme Court of Nevada

October 5, 1927

Appeal from District Court, Washoe County; L. O. Hawkins, Judge.

Action by Joseph F. Nenzel and others, trustees for the Mineral Production and Refining Companies, against the Rochester Silver Corporation and another. From a judgment for plaintiffs and an order denying a new trial, defendants appeal. Affirmed.

C. H McIntosh, of Los Angeles, Cal., and John F. Kunz, of Reno for appellants.

Wm McKnight and M. B. Moore, both of Reno, for respondents.

COLEMAN J.

This action was instituted to recover the possession of certain property and for damages From a judgment in favor of the plaintiffs and an order denying a motion for a new trial, the defendant has appealed. Defendant Patterson having been a nominal party, who seems to have played no part in the case, the parties will be referred to as plaintiffs and defendant, as in the trial court.

The action was originally brought in the name of Joseph Nenzel, A. H. Cutter, and D. V. Mahoney, as trustees for the Mineral Production and Refining Companies. Upon the first trial the complaint was amended so as to substitute Ora Nenzel and Fred L. Miner in the place of Cutter and Mahoney.

Paragraph 3 of the complaint alleges:

"That ever since January 3, 1921, the plaintiffs have been, and now are, the owners and entitled to the possession of that certain water and water right situate in South American Canyon in N.E. 1/4 of N.E. 1/4 of section 22, township 38 north, range 34 east, Mt. Diablo base and meridian, in Pershing (formerly Humboldt) county, Nev., more particularly described in permit No. 4259 issued by the state engineer of the state of Nevada, on the 8th day of May, 1917, and on file in said office, reference to which permit is hereby made for all the particulars thereby shown, together with the pumping plant, pipe lines, tank, and other equipment on the ground upon which the same is situate, together with the mining claims known as and described as 'Cotton Tail' lode mining claims, used in the diversion of the water described in said permit."

Paragraph 4 alleges that the plaintiffs acquired title to the property mentioned on January 3, 1921, and that the defendant at that time was in possession of said property pursuant to an oral lease, at a monthly rental of $30, which expired at the time the plaintiffs became the owners thereof.

The complaint further alleges that upon becoming the owners of said property the plaintiffs notified the defendant that the monthly rental thereafter would be $200; that the defendant had not paid the amount incurred under said monthly rental nor any part thereof except the sum of $180; and that there was due and owing the sum of $3,420.

It is further averred that on July 18, 1922, demand in writing was made of the defendant by the plaintiffs for the payment of said sum, or that they surrender the possession to the plaintiffs within three days, but that the defendant neglected to pay said rent or to deliver over the possession of said premises. The complaint also charges that the defendant held over and continued in possession of said premises without the permission of the plaintiffs.

The prayer of the complaint was for possession of the premises, for rent due in the sum of $3,420, damages in the sum of $4,800, and that said damages and rent be trebled, and for costs.

The defendant filed an answer to the complaint, wherein it denied the alleged ownership and right of possession in the property described in the complaint. It admits that on the 3d day of January, 1921, and prior thereto, it was in possession of the water and water right described, but denied that it was in such possession pursuant to an oral agreement which expired at the time the plaintiffs became such owners, or at all.

The answer further denies all indebtedness; denies that it was notified that the monthly rental would be $200; admits a demand for the payment of rental or the surrender of the property, admits that it neglected and refused to pay at the rate of $200 monthly or to surrender the premises; denies all allegations of the complaint as to amount due, damages, and unlawful holding over.

For affirmative defense to the complaint the answer alleges that on March 27, 1917, Joseph Nenzel, one of the plaintiffs claiming to be the owner of the water rights mentioned in the complaint, entered into an agreement with the Nenzel Crown Point Company to furnish it with the water and water right mentioned, for a period of five years, with the privilege of renewal for a like period, in consideration of the payment of the monthly sum to cover the cost of operation, together with interest on invested capital; that pursuant thereto the said Nenzel did begin and continued to furnish water from said source to said Nenzel Crown Point Mining Company; that thereafter, and on or about June 1, 1919, and while said Nenzel was furnishing water to said Nenzel Crown Point Mining Company, the said company duly assigned to the defendant the Rochester Silver Corporation its rights under said contract and agreement, and that thereafter the said Nenzel ratified and approved said assignment; that thereafter the defendant company, within the five-year period mentioned, did notify the said Nenzel in writing of its determination to exercise its right of renewal for a five-year period of said contract, and thereafter made various and sundry improvements necessary and incident to the...