Rhodes Mining Co. v. Belleville Placer Mining Co.
| Decision Date | 01 February 1910 |
| Docket Number | 1,839. |
| Citation | 106 P. 561,32 Nev. 230 |
| Parties | RHODES MINING CO. v. BELLEVILLE PLACER MINING CO. |
| Court | Nevada Supreme Court |
Appeal from District Court, Ormsby County.
Action by the Rhodes Mining Company against the Belleville Placer Mining Company. From an order denying a motion to dissolve a preliminary injunction, defendant appeals. Affirmed.
Knapp & Cohen, E. G. Knapp, and Samuel Platt, for appellant. J. J Scrivner, S. C. Denson, and C. H. Belknap, for respondent.
This is an appeal from an order denying defendant's motion to dissolve a preliminary injunction, which had been granted at the time of the commencement of the action. In issuing the injunction, and in refusing the motion for its dissolution the court considered the complaint and affidavits which were presented by the respective parties.
It is alleged that the plaintiff holds the patent from the state of Nevada to 160 acres of agricultural land, through the application and contract of the plaintiff's grantor; that for many years prior to 1890 the Holmes Mining Company operated mills and mining machinery for the reduction of ores, by which a large amount of tailings were produced and impounded on the land, and that these ever since have remained in place in one body, to the amount of between 400,000 and 500,000 tons, of the value of $5 per ton; that the tailings have never been abandoned, and that they were duly sold by the sheriff to the plaintiff under a writ of execution in the suit of the Southern Nevada Gold & Silver Mining Company against the Holmes Mining Company; that in August, 1904, the original defendants in the present action who have since conveyed to the Belleville Placer Mining Company, located the ground upon which the tailings were situated as a placer claim, and publicly asserted that the deposit of the tailings converted the ground into mineral land, subject to placer location under the United States mineral laws; that the defendants, claiming a right, title and interest in the tailings by reason of the placer location, in August, 1904, unlawfully entered upon the land, and proceeded to excavate and remove some of the tailings where the same were impounded by the former owners thereof; that the tailings were not the subject of mineral entry as a placer claim or otherwise; that the land was not mineral land, and that the tailings were and are the private property of the plaintiff, and were the property of the Holmes Mining Company until the title and possession passed by the sheriff's sale to the plaintiff; that the defendants threatened to continue to trespass upon the land and commit waste by excavating and removing the tailings, to the great and irreparable damage of the plaintiff; that when the tailings are removed, the land itself is practically valueless for any purpose; and that the plaintiff would be irreparably injured by the carrying out of the threats of the defendant, and could not be compensated in damages.
The affidavits which were used upon the hearing of the motion raise a conflict as to a question of fact relating to whether the tailings had been impounded or abandoned by the Holmes Mining Company. Among other contentions, it is claimed on behalf of the defendant, that the complaint does not state facts constituting a cause of action or warranting the issuance of an injunction; that under the case of Rogers v. Cooney, 7 Nev. 213, the tailings mineralized the land, so that it became subject to location as a placer claim, and that under the provisions in the patent reserving the mineral, and giving to others than the patentee the right to prospect and locate mines on the land, and under the decision in Stanley v. Mineral Union, 26 Nev. 55, 63 P. 59, the defendant is entitled to hold the tailings under the placer location. The plaintiff relies upon the same cases which are cited by the defendant; and, considering two or three of these for examples, the circumstances were different from those admitted or so far established in the present case. In Rogers v. Cooney it appeared that the tailings had not been impounded, and had been abandoned by the mill and the owners of the ore by which they had been produced, in distinction of the claim of the plaintiff here that the tailings in controversy were impounded, and not abandoned, and were sold to the plaintiff. In Ritter v. Lynch (C. C.) 123 F. 931, the tailings were held by the owner, who had retained them in a reservoir against the locator of the placer claim; and, until there is a final determination of the facts, it is not clear whether that case is applicable. In Stanley v. Mineral Union no question relating to tailings was involved, and the plaintiff admits that under that decision and an agricultural patent issued by the state, such as the one held by the plaintiff, mines may be located and held by prospectors.
It is apparent that important questions of fact and law which the district judge may well have considered doubtful are presented, the determination of which, if made now, might settle the controlling issues in advance of the trial. It is said that a temporary restraining order should not be granted unless it clearly appears that the plaintiff is entitled to it; but...
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