Pioneer Mining Co. v. Bannack Gold Mining Co.

• Decision Date: 01 June 1921
• Docket Number: 4384.
• Citation: 198 P. 748,60 Mont. 254
• Parties: PIONEER MINING CO. v. BANNACK GOLD MINING CO.
• Court: Montana Supreme Court

198 P. 748

60 Mont. 254

PIONEER MINING CO. v. BANNACK GOLD MINING CO.

No. 4384.

Supreme Court of Montana

June 1, 1921

Appeal from District Court, Beaverhead County; Joseph C. Smith Judge.

Action by the Pioneer Mining Company against the Bannack Gold Mining Company. From a judgment for defendant and from order denying a motion for a new trial, plaintiff appeals. Affirmed.

H.C. Hopkins, of Butte, for appellant.

Callaway, of Great Falls, E.J. Callaway, of Dillon, and E.B. Howell, of Butte, for respondent.

POORMAN, C.C.

This is an action in ejectment. Verdict and judgment for defendant. Plaintiff appeals from the judgment and from an order overruling its motion for a new trial. The acts of defendant complained of appear in the statement.

At the times mentioned in the complaint plaintiff was the owner of certain mill sites and placer claims, or parts thereof described in the complaint, including the Junction millsite the French millsite, and the South Side placer. The defendant owned certain lands northwest of and adjoining the lands of plaintiff. At one time the Western Mine Enterprise Company owned all of the lands involved herein, and in 1897 it conveyed by deed to A.F. Graeter and others all or a part of the Junction millsite, the French millsite, and the South Side placer, with other lands. This deed contains the following reservations:

"Excepting the lumber and material in the water flume with the so-called Golden Leaf mill, and in the ore bins and mill tram thereon, said lumber and material being the property of the Bannack Mining & Milling Company, and excepting and reserving to the said party of the first part the right of a roadway for wagons across the said premises to connect with the Golden Leaf mill; the right to discharge mill tailings upon the said premises from the operation of the said mill, and excepting and reserving any and all veins or lodes of quartz which may be found or which may be within or upon the said premises and the right to work and explore the same."

The grantees named in this deed in 1898 conveyed their interest to plaintiff. In 1906 the Western Mine Enterprise Company sold and conveyed all of its property which it had not theretofore sold to Graeter and his associates to Carlton H. Hand, who in turn sold it to the defendant company. The predecessor in interest of the Western Enterprise Company was the Golden Leaf Mining Company, the then owner of the Golden Leaf mill, which was operated by water power conveyed to it through the North Side ditch, and the flume, extending across a part of the lands conveyed to the plaintiff company. At the time of the execution of the deed to Graeter and others, the Western Mine Enterprise Company owned the Golden Leaf mill and the land on which the same was situated, but did not own the mill machinery. That was owned by a subsidiary company known as the Bannack Mining & Milling Company, which was the operating company of the mill. The rights of this latter company subsequently passed to the defendant herein.

The defendant maintains that at the time of the sale to Graeter the flume and mill were in a workable condition, the witness stating:

"We had been using the mill and conveying the water from the North Side ditch down to the mill. At the exact time of the conveyance to Graeter * * * they would be in such a condition that a few dollars would have put them into operating condition. It would be just the ordinary work that would have to be done on a flume if you were to shut down in the fall, say, and start work in the spring."

This condition of the mill and flume is disputed by the plaintiff.

The defendant further maintains that the plaintiff, in dredging its ground, destroyed the flume and so changed the surface of the ground that it was impossible to ascertain the exact location of the original flume. Plaintiff also disputes this fact, and maintains that there was no flume there except in certain places.

Subsequently the Bannack Mining & Milling Company rebuilt the flume and, as maintained by defendant, on the same line of the original flume, as nearly as could be then ascertained. The flume so built was of practically the same size as the original flume. The plaintiff, however, claims that the new flume was in a new location and was larger than the old flume.

Some time prior to the trial, the plaintiff caused its ground to be surveyed, and according to that survey, as appears from the evidence, the building designated as a retort building projected onto plaintiff's land a distance of 3.35 feet in width and 24 feet in length. There was also a structure designated as a penstock, or standpipe, which extended across the line onto plaintiff's ground a distance of 5 feet, also a pumphouse 7 feet 3 inches by 9 feet, a toilet building 7 feet 3 inches square, a tailrace 93.5 feet long, 12 feet wide, and 10 feet deep, but according to the survey made by the defendant, which was also in evidence, the retort building was not on the plaintiff's land, and the building known as the pumphouse was entirely abandoned and removed by the defendant before the commencement of the action; that it was only a small house; that the pump was used to pump water in mixing cement for the foundation of the mill; that the toilet was a mere temporary structure set upon the gravel, without a pit or foundation. The flume referred to in the plaintiff's evidence was also upon the plaintiff's ground. It was also maintained by defendant that this flume, tailrace, and standpipe are necessary to the operation of the mill. All these matters, in so far as there was a conflict of evidence, were determined by the verdict of the jury. The only question then remaining here is the question of law relating to the right of the defendant to maintain the flume and the tailrace. The standpipe or penstock, according to the testimony in this case, was a necessary part of the flume, being required to enable the defendant to utilize the water with which to operate the mill.

At the time plaintiff acquired title to this land, it was charged with the knowledge of the existence of this mill and of the fact that same was operated by water power conveyed to it through the North Side ditch and the flume, for the ditch and the flume extended across the land conveyed to plaintiff, and the deed to the plaintiff's immediate grantor refers to the "water flume connecting with the Golden Leaf mill," reserving the material thereon, with the statement that the same belonged to the Bannack Mining & Milling Company. The deed also reserves a right to a roadway for wagons to the "Golden Leaf mill," also "the right to discharge tailings upon the said premises from the operations of said mill." The Western Mine Enterprise Company was at the time of the conveyance to plaintiff's immediate grantors the owner of the mill which was operated only by this water power. While the deed did not expressly reserve the right to convey water across the land conveyed to the plaintiff's grantors, or to erect and maintain a flume thereon, yet there is the clear implication that the company did not intend to...