State ex rel. Standard Slag Co. v. Fifth Judicial District Court in and for Nye County

Decision Date03 December 1943
Docket Number3402.
PartiesSTATE ex rel. STANDARD SLAG CO. v. FIFTH JUDICIAL DISTRICT COURT IN AND FOR NYE COUNTY et al.
CourtNevada Supreme Court

Original proceeding by the State, on the relation of the Standard Slag Company, for a writ of prohibition against the Fifth Judicial District Court of the State of Nevada in and for the County of Nye, and others.

Order denying the writ.

Charles M. Merrill, John E. Robinson, and Walter Rowson, all of Reno, for relator.

H. R Cooke, M. A. Diskin, and Thatcher & Woodburn, all of Reno for respondents.

ORR Chief Justice.

On October 2, 1943, relator petitioned this court for a writ of prohibition, and on October 9, 1943, the matter was argued and submitted to the court for decision. Prior to its submission counsel for the respective parties stipulated that the matter be heard before two of the Justices of this court. It was further stipulated that upon a decision being reached an order be entered, and a written opinion filed later. On the 13th day of October, 1943, this court made its order denying the writ.

The petition presents for consideration a new situation insofar as the exercise of eminent domain as it relates to the mining industry is concerned. It is well established in this state that mining, being a paramount industry, is a public use, and the power of eminent domain can be exercised in the furtherance of the development of mines and the extraction and reduction of ores contained therein. We need not now be concerned with the constitutionality of the statutes relating thereto and the intent and purpose thereof. This purpose and the liberality with which the statutes should be construed have been defined and established in the following cases: Dayton Gold & Silver Min. Co. v. Seawell, 11 Nev. 394; Overman S. M. Co v. Corcoran, 15 Nev. 147; Goldfield Consol. v. Old Sandstrom Annex, 38 Nev. 426, 150 P. 313; Schrader v. Third Judicial Dist. Court, 58 Nev. 188, 73 P.2d 493; Douglass v. Byrnes, C.C., 59 F. 29; Nevada Consol. Copper Co. v. Consolidated Coppermines Co., D.C., 44 F.2d 192, at page 197.

The law of this state granting the right to exercise the right of eminent domain in mining operations being well settled, determined and construed in most respects, as evidenced by the holdings in the cases cited supra, had the application of respondent corporation in the district court asked for condemnation for the purpose of building a road, erecting a tramway or running a tunnel in order to facilitate the working of its mines, the action would have been clearly within the jurisdiction of that court to determine. However, as is quite often the case, new situations require new constructions, and it is the new method of "open pit" mining which now engages our attention.

In order that an idea may be had as to the privilege desired by respondent corporation and which it seeks to enforce by eminent domain, it is deemed advisable to give a brief summary of the allegations of the complaint. The complaint alleges that the plaintiff in the trial court, respondent here, is presently engaged and has since the 14th day of December, 1936, been engaged in the mining and development of mining claims known as the Gloria group, situated in Nye County, Nevada, and in the course of its mining operations has developed a large body of brucite ore upon three of the claims. That for a number of years brucite ores have been mined from this area by means of what is commonly known as "open pit" mining, and that method of mining is alleged to be the most economical and expeditious means of mining the character of ore contained in said claims. That in such operations it is necessary to remove large amounts of overburden and waste material which overlie the valuable brucite deposits; that such operation is commonly known as "stripping". That in the open pit operation as the pit is deepened it is necessary that it be widened and its exterior perimeter extended by carrying outward and back the benches, spirals and switchbacks, so as to maintain proper slopes of the banks within the pit. That in said method the ore is blasted and the ore, as well as waste material, loaded on trucks with power shovels and moved by means of said trucks over the roads which are maintained upon benches within the pit. That the benches are sometimes called "levels", and are designated in numerical order from the upper perimeter of the pit down to its bottom. That the plaintiff and respondent has worked three benches, which are designated as No. 5790, No. 5730 and No. 5690, these numbers referring to the elevation of the benches above sea level. That each of the benches extends in a semi-circular shape, and when completed will be almost circular. That underlying the area embraced within the said pit plan from elevation 5850 down to sea level elevation 5500 are approximately 200,000 tons of valuable brucite ore which will be mined under that plan of operations when the same has been constructed and completed down to said sea level elevation 5500. That the Bluestone lode mining claim owned by the relator is adjacent to the mining claims being mined by respondent, and respondent alleges that in order to mine said brucite within said claims by the open pit mining it is necessary that the respondent extend the perimeter of its pit and its proposed benches into, to and across a certain part and portion of said Bluestone claim, and that the extension of said pit across said Bluestone claim would require the removal from said Bluestone claim of approximately eighty thousand tons of material. That said operations across the Bluestone claim will increase the recoverable brucite ore contained in the claims belonging to respondent by approximately 42,000 tons. That mining by such crossing of said Bluestone claim will be more practical, economical and expeditious and prevent unnecessary delays in the extraction of the ore bodies, and further result in the saving of some ninety-seven cents per ton, or approximately $105,900.

We now have this question: may the right of eminent domain be exercised for the uses alleged in the complaint? We think that right, if given at all, must be found in paragraph 6...

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3 cases
  • Marion Energy, Inc. v. KFJ Ranch P'ship
    • United States
    • Utah Supreme Court
    • August 19, 2011
    ...construed in furtherance of such purpose.” (citing Monetaire Mining, 174 P. at 175)); State ex rel. Standard Slag Co. v. Fifth Judicial Dist. Court, 62 Nev. 113, 143 P.2d 467, 469 (1943) (same). 7. Hanchett v. Burbidge, 59 Utah 127, 202 P. 377, 379–80 (1921) (“We must be guided by the law a......
  • Marion Energy, Inc. v. KFJ Ranch P'ship
    • United States
    • Utah Supreme Court
    • July 12, 2011
    ...be liberally construed in furtherance of such purpose." (citing Monetaire Mining, 174 P. at 175)); State ex rel. Standard Slag Co. v. Fifth Judicial Dist. Court, 143 P.2d 467, 469 (Nev. 1943) (same). 44. Hanchett v. Burbidge, 202 P. 377, 379-80 (Utah 1921) ("We must be guided by the law as ......
  • NL Industries, Inc. v. Eisenman Chemical Co., 13646
    • United States
    • Nevada Supreme Court
    • June 3, 1982
    ...the power of eminent domain can be exercised on behalf of that industry. NRS 37.010(6). 4 See also, State ex rel. Standard Slag Co. v. District Court, 62 Nev. 113, 143 P.2d 467 (1943); Goldfield Consolidated Milling & Transportation Co. v. Old Sandstorm Annex Gold Mining Co., 38 Nev. 426, 1......
2 books & journal articles
  • CHAPTER 9 ACQUISITION OF RIGHTS-OF-WAY BY CONDEMNATION
    • United States
    • FNREL - Special Institute Rights-of-Way How Right is Your Right-of-Way (FNREL)
    • Invalid date
    ...Transmission Co., 94 P. 631 (Mont. 1908). NEVADA: State ex rel. Standard Slag Co. v. Fifth Judicial Dist. Court In And For Nye County, 143 P.2d 467 (Nev. 1943); Overman Silver Mining Co. v. Corcoran, 15 Nev. 147 (Nev. 1880); Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394 (Nev. 1876......
  • CHAPTER 8 CONSIDERATIONS IN DRAFTING GOLD LEASES AND DEVELOPMENT AGREEMENTS
    • United States
    • FNREL - Special Institute Gold Mine Financing (FNREL)
    • Invalid date
    ...656 P.2d 844 (1983). [41] Mosher v. United States Steel Corp., 676 S.W.2d 99 (Tex. 1984). [42] The Standard Slag Co. v. District Court, 62 Nev. 113, 143 P.2d 467 (1943). [43] Kourlis & Alfers, Surface Use Agreements, Rights of Access and Surface Use Institute, Paper No. 2, pp. 2-9, 2-10, 2-......

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