Bliss v. Kingdom (1873) · DecisionDepot

Bliss v. Kingdom

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1873 No. No. 3,561Published

Before: Niles

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Holding. The court held that the remedy provided by the Act of April 1st, 1870, is merely cumulative and does not preclude a party from enforcing rights independent of the statute. Consequently, the lower court erred in dismissing the complaint based on the availability of the statutory remedy.

Issues

Whether the remedy provided by the Act of April 1st, 1870, is exclusive or cumulative.
Whether the plaintiff was required to pursue the statutory remedy before seeking other relief.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“the remedy it purports to provide is merely cumulative.”

“it cannot be construed to have the effect of excluding a party from the enforcement of a right which he claims to have independent of the statute.”

Synopsis

Act of 1870 Concerning- Mining Claims.—The Act of 1870 providing for the condemnation of the right of way over or through a mining claim for ditches, tunnels, flumes, etc., necessary for the convenient working of another mining claim, is merely cumulative, and does not have the effect of excluding a party from the enforcement in Court of the right to construct such tunnels, ditches, flumes, etc., when that right exists independent of the statute, as by local customs.

Enjoining Interference with Mining Eight. — If by the local customs the owner of one mining claim has a right to construct a tunnel through an adjoining claim, in order to enable him to work his own claim, a Court of equity may enjoin any interference with that right.

By the Court, Niles, J.: The Court erred in sustaining the defendant’s motion to dismiss the complaint, upon the ground that the Act of April 1st, 1870 (Stats. 1869-70, p. 569), provides a remedy which the plaintiff was bound to pursue. Without entering into an unnecessary discussion of the constitutionality of this Act, it is sufficient to say that the remedy it purports to provide is merely cumulative. It is undertaken by this Act to provide means by which a party may procure a right which he would not otherwise have, but it cannot be construed to have the effect of excluding a party from the enforcement of a right which he claims to have independent of the statute.

The suit appears to have been dissmissed solely for the reason that the plaintiff had an adequate remedy under the statute referred to. We do not think we are called upon to decide whether the complaint is defective in other respects or not, especially as we have not been favored with any brief or points and authorities upon the part of respondent.

[654]Judgment reversed and cause remanded for further proceedings in accordance with this opinion.

Bliss v. Kingdom

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