Silver Peak Mines v. Valcalda

• Decision Date: 05 April 1897
• Docket Number: 618.
• Citation: 79 F. 886
• Parties: SILVER PEAK MINES v. VALCALDA et al.
• Court: U.S. District Court — District of Nevada

79 F. 886

SILVER PEAK MINES v. VALCALDA et al.

No. 618.

United States Circuit Court, D. Nevada.

April 5, 1897

M. A Murphy, for plaintiff.

Robert M. Clarke, for defendants.

HAWLEY District Judge (orally).

This is an action of ejectment to recover possession of certain lands, and the right to the waters of certain springs situate thereon. The land is public land of the United States neither party at the time of the trial having the legal title thereto, and both claiming the property under possessory rights. The case was tried before a jury, who found a verdict in favor of the plaintiff. The defendants move for a new trial. There are 15 assignments of error, and 11 speculations of particulars in which it is claimed that the verdict was contrary to, and not supported by, the evidence, which are urged and relied upon in favor of the motion. The evidence in this case was in many respects unusual, extraordinary, and peculiar. Nearly every legal point presented and ruled upon by the court was excepted to, and every proposition of fact advanced by either party was denied by the other. The case, upon the trial glistened with objections, technical and otherwise. The defendants had located a mill site in connection with a mine, and there was a keen contest as to whether the mill site or the springs claimed by the plaintiff were included in the metes and bounds of the land as described in the plaintiff's complaint. Nearly every witness was vigorously attacked, and his testimony assailed, either by opposing witnesses or by the respective counsel. The jurors were impartial and intelligent. They were accepted without any challenge from either party, and gave close attention to the testimony of the respective witnesses. Unless the court erred in its rulings, the verdict of the jury should not be disturbed. The only question which will be considered upon this motion relates to the right of plaintiff to recover the water of the springs and incidentally as to the land. The rulings of the court upon all other points I am satisfied are correct, and the verdict of the jury is accepted as settling the conflict of evidence upon the facts.

Was there any error of the court upon any point concerning the water rights? It is claimed that the complaint is insufficient, that there is no evidence to sustain the verdict, and that the court erred in refusing to give an instruction asked by defendants. The complaint avers that the plaintiff was on the 16th day of March, 1896, and for over 25 years prior thereto, by itself, its grantors, and predecessors in interest, had been, the owner, lawfully possessed and entitled to the possession, of certain described pieces of land, situate at Red Mountain, in the county of Esmeralda. After averring the unlawful and wrongful ouster of plaintiff by defendants on the 17th of March 1896, the complaint proceeds:

'That there is situated on said land springs of water, from which the miners employed in working the mining properties belonging to this plaintiff procure their supply of water for domestic and culinary purposes; and the same cannot be had without going a much greater distance from said mining properties, and at enormous outlay of money in hauling the same in wagons, and the water that can be procured at other places is not of as good quality as that contained in said springs; and the defendants have refused, and still refuse, to permit the agents of this plaintiff to draw water from said springs, to its damage,' etc.

This allegation, as to the water right, is imperfectly stated. The defect is, however, more as to a matter of form than of substance. No demurrer was interposed to the complaint. The parties went to trial upon the issues raised by the complaint and answer. The answer denied the averments of the complaint, and set up posessory title in the defendants. Under these circumstances, no objection can now be urged to the form of the averments. The complaint states a cause of action.

With reference to the evidence, in so far as the point under considerations is concerned, it is only necessary to state that it, among other things, shows that the land is nonmineral and non- agricultural in character, and is situated four or five miles from certain lodes owned by the plaintiff; that the Crown Mine, owned by plaintiff, was located February 18, 1888; that on October 1, 1888, the plaintiff, by F. M. Taylor, its attorney in fact, located five acres of the land in controversy, 'as a mill site in connection with the Crown Mine, and claims all the water running from springs included in said mill site;' that both locations-- mine and mill site-- were recorded in the records of the Silver Peak and Red Mountain mining district; that the notice of the location of the mill site and water right was posted upon the ground; that on October 1, 1888, a survey of the mill site was made by a deputy mineral surveyor, and duly recorded in the local land office; that posts were placed in a proper manner at each corner of the land; that work was done by plaintiff in cleaning out the springs and running a tunnel for the purpose of increasing the supply of water at the springs; that application had been made at the United States land office for a patent to the Crown Mine and mill site. In Appropriating the waters of a spring upon the public lands, only such acts are necessary, and such indications and evidences of appropriation required, as the nature of the case and the face of the country will admit of, and are, under the conditions and circumstances at the time, practicable to accomplish the purpose of the appropriator thereof in making a beneficial use of the water. This principal is embodied in an instruction which was prepared by defendants, and given by the court in its charge. The court charged the jury, among other things, as follows:

'(1) Under the laws of the state of Nevada, a party in the actual possession may maintain an action of ejectment to recover possession of land from which it has been ousted by a party who does not have the legal title or right of possession thereto. If the plaintiff had actual prior possession of the land, this is enough to enable it to recover from a mere trespasser, who subsequently entered, while the plaintiff was so in possession, without any title. In all cases where a party relies solely upon possession, as in this case, there must be a subjection of the land to the will and control of the claimant. The acts must at all times be in harmony with his claim. His possession must be apparent, open, notorious, and unequivocal, carrying with it the evidence and marks of ownership. In this connection I will read you a portion of the instructions asked by the defendants. The plaintiff, in its complaint, sets up a claim to the waters of certain springs, which it is alleged are situated upon the lands described in the complaint touching these springs, and the right to have and use the waters thereof. You are instructed that, the land being public lands of the United States,-- the United

...