Fritts v. Camp
Before: Temple
Synopsis
Venue of Action — Quieting Title — Injunction against Mining . DAbris— Adverse Claim of Easement. — An action to enjoin the defendants from dumping mining débris into a creek above the plaintiff’s land, to his injury, under an adverse claim of an easement to flow and deposit the débris upon the plaintiff’s premises, which the complaint alleges to be without right, and which the answer seeks to justify, is in effect an action to quiet the plaintiff’s title as against the defendants’ claim of the easement, within the meaning of section 5 of article VI. of the constitution, requiring actions to quiet title to real estate to be commenced in the county in which the real estate, or any part thereof affected by the action, is situated.
Id.—Change of Venue — Affidavit of Merits — Second Motion — Waiver. —In an action to quiet title to land, upon the supposition that it is proper to move for a change of venue on the ground that the land is situated outside of the county in which the action is brought, it is incumbent upon the court to transfer the cause to the proper county upon a mere suggestion, and no affidavit of merits is necessary; nor does a failure to appeal from a first order denying a motion for such change, for want of an affidavit of merits, constitute a waiver of right to move again for the transfer of the cause to the proper county.
Id. —Jurisdiction —Waiver — Dismissal of Action. — Where one of the purposes of an action is to quiet an adverse claim to real estate, the action must be originally brought in the county where the land is situated; and where the action is brought in a court outside of such county, the court has no jurisdiction over the case, and this is an objection which cannot be waived, but the action should be dismissed for want of jurisdiction.
Temple, C. There are two appeals in this ease, both taken by the defendants. The first is from an order refusing to change the place of trial from Del Norte County to Siskiyou; the second, from a final judgment in favor of the plaintiff, and an order refusing defendants’ motion for a new trial. As we have reached the conclusion that the case must be dismissed, it is not necessary to consider the appeals separately.
The action was brought in Del Norte County to enjoin the defendants from dumping into Indian Creek, above plaintiff’s premises, tailings, bowlders, stones, sand, gravel, or clay from mineral lands, whereby they foul the waters of the creek, fill up his mill-dam, deprive him of water to irrigate his garden, stop his saw-mill from running, and destroy other lands along said creek, to his damage, etc.
Plaintiff charges that “ since the discovery of gold on this creek, over thirty years ago, mining has always been carried on on said stream; but until the commencement of hydraulic mining on said stream on a large scale by the defendants, as hereinafter stated, the said Indian [395]Creek, in crossing the premises of plaintiff, ran on a hard rock bottom.”
The manner of conducting hydraulic mines is then shown, and that by such process “ refuse matter, consisting of bowlders, stones, pebbles, sand, and clay, generally known as tailings or mineral debris, is washed into and down said Indian Creek, and deposited in the beds and channels thereof throughout its entire length, below the defendants’ mine and on the lands of plaintiff and in his mill-dam; and that this mode of mining has been carried on to some extent on the premises now owned and occupied by defendants for over ten years.”
The concluding allegation of the complaint is as follows: “And plaintiff avers that the defendants refuse to discontinue said wrongful and injurious acts, and they and each of them threaten and intend to prosecute their mining works at the point where they are now working the same as hereinbefore described, and to dump and discharge the débris from their mine into the said Indian Creek in the manner they have heretofore done as hereinbefore alleged, and they claim adversely to this plaintiff an easement to flow and deposit upon plaintiff’s premises, and in said creek running through the same, their tailings or mining ddbris; whereas plaintiff alleges that none of the defendants possess any or either of the rights or easements so claimed; and that all such pretenses are contrary to law and equity, and to the wrong and injury of plaintiff.”
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