Dower v. Richards

Foote, C. Richards was the owner of a lot of ground which he claimed and held by a deed of conveyance from a Mrs. Bigelow, who had acquired it with other land, under the town-site patent of the city of Nevada, issued in the year 1869, by virtue of the provisions of chapter 32 of the Revised Statutes of the United States.

The plaintiff had run a tunnel under this lot, claiming that she had a right to do so, because, as she alleged, in such way only could she reach and work a “gold mine” situated within said lot, and .known to exist at the date of the town-site patent, under which said lot was held and claimed.' As a consequence, a well belonging to the defendant, located on that lot several hundred feet from the tunnel, had become drained of its water, and to re[478]store the water to the well the defendant caved in the plaintiff’s tunnel at a point where the latter claimed it had reached a spur of the quartz ledge or “gold mine.” Because of the alleged trespass of the defendant in digging in his own lot in such a way as to cave in the tunnel of the plaintiff, and to recover the damages resulting therefrom, the latter instituted this action. The cause was tried by a jury, who returned a verdict for the defendant, and from the judgment rendered thereupon this appeal is prosecuted. A bill of exceptions presents the grounds relied on to reverse that judgment.

The main points made in support of the plaintiff’s contention are:—

1. That the court erred in its instruction to the jury numbered “ one.”

2. That it refused to grant twelve instructions requested by the plaintiff.

The instruction first mentioned is as follows:—

“ The jury is instructed that if they believe from the evidence that the place where Philip Richards caved in the tunnel was upon ground to which he had previously derived title under the town-site patent of the city of Nevada, and that such place was not upon any mining or tunnel possession held at the date of, or prior to the date of, such town-site patent, then the jury should find for the defendant, unless you find the acts of the defendant in filling up the tunnel were done through malice and oppression.”

It is very plain that the United States, in granting the patent under which the defendant held and possessed his lot, reserved to itself the title to any “gold mine” which might be known to exist in any part of that lot (U. S. R. S., 2d ed. 1878, sec. 2392, p. 438,), and the plaintiff urges that as a consequence, the government, or any one authorized by it to explore such gold mine, may tunnel under a lot granted by a town-site patent dated in the year 1869, and drain the water from a well situated on