Amador Queen Mining Co. v. Dewitt

Belcher, C. C. This is an action to condemn a right of way through a tunnel under defendant’s mining claim. The facts of the case, as they appear in .the complaint, may be briefly stated as follows:—

The plaintiff owns two mining claims in Amador County, one situated in a ravine known as Hunt’s Gulch, and the other in a ravine known as Murphy’s Gulch. Between these two claims is a high ridge of land, which is also a mining claim, and is owned by defendant. On its claim in Hunt’s Gulch, plaintiff has a quartz mill, and in its claim in Murphy’s Gulch is a large amount of valuable gold-bearing ore. There is a tunnel, constructed by plaintiff and defendant, which extends from a point near plaintiff’s quartz mill, through and under defendant’s claim to Murphy’s Gulch. Plaintiff is working its mine in Murphy’s Guleh, and is transporting the ore taken therefrom through the tunnel to its mill, and without a right of way through the tunnel for the purpose of so transporting the ore, it cannot continue to work or develop its said mine.

The defendant, in May, 1882, obtained a patent from the United States for his mining claim, which contained, among other things, the following condition of sale:—

" That in the absence of necessary legislation by Congress, the legislature of California may provide rules for working the mining claim or premises hereby granted, involving easements, drainage, and other necessary means to its complete development.”

[484]This condition of sale was inserted in the patent in pursuance of the provisions of section 2338 of the Revised Statutes of the United States, which reads as follows:—

“As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any state or territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and these conditions shall be fully expressed in the patent.”

The prayer is, that “the damages which defendant will sustain by reason of a right of way granted to plaintiff through said tunnel for the purpose of working plaintiff’s said mine in Murphy’s Gulch be assessed, and that on the payment of the damages so assessed by this honorable court to the defendant, a right of way for working and developing plaintiff’s said mine in Murphy’s Gulch through said tunnel may be condemned by this honorable court,” etc.