Wiggins v. Henderson

• Decision Date: 30 April 1894
• Parties: WIGGINS et al. v. HENDERSON, Justice of the Peace.
• Court: Nevada Supreme Court

36 P. 459

22 Nev. 103

WIGGINS et al. v. HENDERSON, Justice of the Peace.

Supreme Court of Nevada

April 30, 1894

Application by William Wiggins and James Wiggins for a writ of certiorari to review the proceedings and judgment of Charles Henderson a justice of the peace of Empire township, Ormsby county Nev., in imposing a fine on each of relators for leaving a well unprotected and in a dangerous condition. Writ granted.

H. F Bartine, for relators.

Alex. J. McCowan, Dist. Atty., for respondent.

MURPHY C.J.

On the 2d day of March, 1894, the following notice was filed with the justice of the peace of Empire township, in the county of Ormsby, state of Nevada: "Carson City, Ormsby county Nevada. March 1st, 1894. I hereby certify that there is a well, not surrounded by a fence or otherwise secured, in empire township, Ormsby county, Nevada; said well being located near the slaughterhouse owned by, or in the possession of, James and William Wiggins; said well being dangerous to persons and animals; and that the cost of fencing or otherwise securing the same against any avoidable accident would be about $5.00. Joseph Langevin." Said notice appears to have been filed under the provisions of an act of the legislature to secure persons and animals from danger arising from mining and other excavations (Gen. St. § 290 et seq.), which reads as follows: "Section 1. Any person or persons, company or corporation, who shall hereafter dig, sink, or excavate, or cause the same to be done, or being the owner or owners, or in the possession under any lease or contract of any shaft, excavation, or hole, whether used for mining or otherwise, or whether dug, sunk, or excavated, for the purpose of mining, to obtain water, or for any other purpose, within this state, shall, during the time they may be employed in digging, sinking or excavating, or after they have ceased work upon or abandoned the same, erect or cause to be erected, good and substantial fences, or other safeguards, and keep the same in good repair, around such works or shafts, sufficient to securely guard against danger to persons and animals, from falling into such shafts or excavations. Sec. 2. Any person being a resident of the county and knowing, or having reason to believe, that the provisions of section 1 of this act are being or have been violated within such county, may file a notice with any justice of the peace or police judge therein, which notice shall be in writing, and shall state; First: The location, as near as may be, of the hole, excavation or shaft; second: that the same is dangerous to persons or animals, and has been left, or is being worked, contrary to the provisions of this act; third: the name of the person or persons, company or corporation, who is or are the owners of the same, if known, or if unknown, the persons who were known to be employed therein; fourth: if abandoned. and no claimant; and fifth: the estimate cost of fencing, or otherwise securing the same against any avoidable accident. Sec. 3. Upon the filing of the notice, as provided for in the preceding section, the justice of the peace, or judge of the police court, shall issue an order, directed to the sheriff of the county, or to any constable or city marshal therein, directing such officer to serve a notice, in manner and form as is prescribed by law for the service of summons upon any person or persons, or the authorized agent or agents, of any company or corporation named in the notice on file, as provided...