Strong v. Brown

• Decision Date: 15 April 1914
• Citation: 26 Idaho 1,140 P. 773
• Parties: ELISHA STRONG et al., Appellants, v. LUCIUS P. BROWN et al., Respondents
• Court: Idaho Supreme Court

140 P. 773

26 Idaho 1

ELISHA STRONG et al., Appellants, v. LUCIUS P. BROWN et al., Respondents

Supreme Court of Idaho

April 15, 1914

MINING EXCAVATIONS-NEGLIGENCE-DAMAGES.

1. It is lawful for the miner to sink holes, pits and shafts on mineral lands, and to do so is not of itself an act of negligence, and an excavation, pit or shaft made by a miner in the prosecution of his work is not of itself a nuisance.

2. The owner of a mining claim is not liable to the owner of livestock for damages resulting from livestock running at large falling into a pit, prospect hole or mining shaft left open by the miner, and the locator or owner of mining claims is not bound by law to fence or inclose the same in order to protect livestock running at large on the public domain from being injured by falling into the same.

APPEAL from the District Court of the Fifth Judicial District, in and for Bear Lake County. Hon. Alfred Budge, Judge.

Action for damages. Judgment for defendant. Plaintiff appeals. Affirmed.

Judgment affirmed, with costs in favor of respondent. Petition for rehearing denied.

T. L Glenn, for Appellants.

All persons have a common interest in the grass on the public lands of the United States except in so far as the grazing of sheep has been restricted by statute, and if the appellants in common with others had an interest in the grasses growing on the public domain and were entitled to graze their stock thereon, it was the duty of respondents to avoid creating any pitfalls on said public land and leaving them open or uninclosed, thus endangering both life and property. (Sweet v. Ballentyne, 8 Idaho 431, 69 P. 995; Sifers v. Johnson, 7 Idaho 798, 97 Am. St. 271, 65 P. 709, 54 L. R. A. 785; Cooley's Constitutional Lim 6th ed., 704. Commonwealth v. Alger, 7 Cush. (Mass.) 53.) If the construction of a ditch is dangerous to travel the digging of pits and leaving them uncovered or unfenced, whereby stock may fall therein and be killed or destroyed, constitutes a nuisance, especially on lands on which there is an implied right accorded by the United States to run or graze horses and cattle. (City of Lewiston v. Booth, 3 Idaho 692, 34 P. 809; Thomas on Negligence, p. 45.)

To create and maintain a nuisance dangerous to life or property is negligence per se, and such act is made punishable by our law; if one violates such law and injury results to either person or property of another, such wrongdoer is liable, criminally and civilly. (Conway v. Monidah Trust Co., 47 Mont. 269, 132 P. 26.) "A mine owner is bound to so fence or guard the shaft openings as to prevent its being a source of danger to the cattle of the surface owner." (Williams v. Groucott, 4 Best & Sm. 149, 122 Eng. Reprint, 416; 15 Am. & Eng. Ency. Law, 589.)

"When one is engaged in an act which the circumstances indicate may be dangerous to others, and the event whose occurrence is necessary to make the act injurious can be readily seen as likely to occur under the circumstances, the defendant is liable if he does not take all the care which prudence may suggest to avoid the injury." (McGrew v. Stone, 53 Pa. 436; Webb's Pollock on Torts, p. 29; 1 Sedgwick on Damages, 8th ed., p. 28, sec. 29.)

Chas. E. Harris, for Respondents.

Idaho has no statute requiring the fencing or covering of excavations made by prospectors and miners on their own ground, and in the absence of statute the common law rules. (27 Cyc. 751; Driscoll v. Clark, 32 Mont. 172, 80 P. 1,373; Conway v. Monidah Trust Co., 47 Mont. 269, 132 P. 26; Beinhorn v. Griswold, 27 Mont. 79, 94 Am. St. 818, 69 P. 557, 59 L. R. A. 771; Knight v. Abert, 6 Pa. 472, 47 Am. Dec. 478, 49 Am. Dec. 261, notes.)

"The rightful use of one's own land may cause damage to another without any legal wrong." (City of Bellevue v. Daly, 14 Idaho 545, 125 Am. St. 179, 94 P. 1036, 14 Ann. Cas. 1136, 15 L. R. A., N. S., 992.)

Negligence cannot be predicated upon one's lawful and ordinary use of his own premises. (Schimberg v. Cutler, 142 F. 701, 74 C. C. A. 33; 15 Current Law, 147, and cases there cited; King v. Oregon Short Line Ry., 6 Idaho 306, 55 P. 665, 59 L. R. A. 209; West v. Shaw, 61 Wash. 227, 112 P. 243; Smalley v. Rio Grande Western R. Co., 34 Utah 423, 98 P. 311.) And in connection with trespassing: Holt v. Spokane etc. Ry. Co., 4 Idaho 443, 40 P. 56; 29 Cyc. 442, 444; 5 Current Law, 116, and cases cited; Oakes Mfg. Co. v. New York, 206 N.Y. 221, 99 N.E. 540, 42 L. R. A. 286.

"Plaintiff cannot recover where the allegations of the complaint show that his own negligence was the proximate cause of the injury." (Goure v. Storey, 17 Idaho 352, 105 P. 794.)

The duty of the defendants must be shown by a statement of facts from which the duty follows as a matter of law. And after showing that duty the complaint must allege a breach of such duty. (29 Cyc. 556; Schmidt v. Bauer, 80 Cal. 565, 22 P. 256, 5 L. R. A. 580.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

This action was commenced to recover damages for the loss of livestock that were running on the public range and strayed on to the premises of the defendants and fell into certain "pits" or excavations that had been made on the defendants' premises in the prosecution of work on their phosphate mines. A demurrer to the complaint was sustained and judgment of dismissal was entered and this appeal was thereupon prosecuted.

The only question arising, therefore, is as to the sufficiency of the complaint to state a cause of action. The material allegations thereof are as follows:

"2. That at all times herein mentioned the defendants were joint owners of and in possession of the following phosphate mining claims. (Here follows a description of the claims which are located in Bannock county.)

"3. That on the day of May, 1912, plaintiffs were and for some time prior thereto were the owners of, in possession of and entitled to the possession of the following described animals, to wit: (Here follows a description of the animals and allegations of the value thereof.) That in the month of April, 1912, the said mares and horses were turned upon the public range to graze, that so while on said range, the blue mare fell into a pit on said first claim and was killed thereby; that the gelding while so upon said range fell into a pit on said second claim and was killed thereby; that the said gray mare, while so upon said range, fell into a pit on said third claim, and was killed thereby; that the defendants in utter disregard of the rights of plaintiffs negligently, wrongfully and carelessly, after digging said pits, failed to inclose the same, so as to protect stock turned upon the range, and when said pits became filled with snow they were so hidden from view that the said horses walked into said pits and were thereby killed and destroyed to plaintiff's damage in the sum of five hundred and twenty-five dollars ($ 525.00)."

The important and material question in this case is whether a miner, prospector or land owner is guilty of negligence in leaving prospect holes, pits or shafts open and unfenced on the public domain or elsewhere upon mineral lands. In other words, must the miner and prospector fence and inclose prospect holes, pits and mining shafts and tunnels to protect livestock running at large from falling into them? In this case it stands admitted that the respondents were the owners and in possession of certain phosphate claims, and that they had opened "pits" on these claims and the horses belonging to the appellants strayed on to the claims, fell into the pits and died.

The statutes of the United States authorize the prospector and miner to go upon the public domain and prospect for precious metals and locate mining claims, and the statutes require that certain work must be done, which includes digging a pit or sinking a shaft in order to hold such location. It is clear, therefore, that to make such excavation, either on a man's...