BYRNES et al. v. DOUGRASS et al., 83 F. 45

GILBERT, Circuit Judge, after stating the facts as above, delivered the opinion of the court. It is the contention of the appellants that, under the act of the legislature of Nevada on which the proceedings in this case were had, the circuit court was powerless to take the tunnel belonging to the owners of one mine, and bestow it by right of eminent domain upon the owners of another.

It appears from the evidence that when the appellees took possession of the right of way under the proceedings in this case the old tunnel was badly caved down, and in very bad shape, and that it cost nearly as much to clean it out as it would have cost to run a new tunnel.

The statute under which these proceedings are had declares that “the production and reduction of ores are of vital necessity to the people of this state; are pursuits in which all are interested, and from which all derive a benefit; so the mining, milling, smelting, or other reduction of ores are hereby declared to be for the public use, and the right of eminent domain may be exercised therefor.” Gen. St. Nev. § 256. In Mining Co. v.

Seawell, 11 Nev. 394, it was held by the supreme court of that state that the condemnation of a right of way for a tunnel for the operation of a mine under the provisions of the statute in question was constitutional, and that the purpose for which the tunnel was to be appropriated was a public use. That decision was approved in the later case of Mining Co. v. Corcoran, 15 Nev. 147, and it undoubtedly declares the settled law of that state.

Under the facts that appear in the record, and that were acted upon by the court in rendering the decree which is appealed from, we deem it unnecessary to consider whether or not a mining tunnel which has been constructed and is in use by a mining corporation,may, under the statute of Nevada, be taken from the company by which it is owned or used, and be devoted to the use of another mine. That question is not presented in this case. The tunnel of the Atlantic mine, which was appropriated by the appellees in those proceedings, had not been used for mining purposes for many years.

It is true tha t it had not been abandoned, and that it still belonged to the Atlantic mine, and that the owners of that mine claimed it, and the right to use it; but the fact remains that they had not used it, and there was nothing in the record to show a present purpose to use it, for mining purposes. At the time when these proceedings were begun, therefore, it stood in the same relation to the property of the mining company in which any other of its property stood which was not being actually used for mining purposes.

The right to condemn it by the exercise of eminent domain rested upon the principles which have controlled the decisions of courts in cases where the lands of railroad corporations, not actually in use by them, nor absolutely necessary for the enjoyment of their franchises, have been held subject to be taken by other corporations ih the exercise of the right of eminent domain. Peoria, P. & J. R. Co. v. Peoria & S. R. Co., 66 Ill. 174; In re Rochester Water Com’rs, 66 N. Y. 413; New York, C. & H. R. R. Co. v. Metropolitan Gaslight Co., 63 N. Y. 326; Morris & E. R. Co. v. Central R. Co., 31 N. J. Law, 205.

The commissioners in their report, and the court in its decree, evidently took this view of the relation of the old tunnel to the Atlantic mine. The remaining assignments of error direct our attention to the fact that in the report of the commissioners and in the final decree no compensation whatever is allowed for that portion of the old tunnel which was located in the Contact mine, and no compensation was allowed for the riglit of way through the mines which intervened between the Atlantic mine and the Goodman. The report of the commissioners was based upon conflicting testimony.

Competent evidence was produced before them to prove that the old tunnel in the Contact mine and the right of way through the other mines were of no value, and that it was a benefit, rather than a disadvantage, to the intervening mines to develop their lodes by the tunnels which were cut through them, and that in all cases where ore of any value was taken it was placed upon the mining premises, and there left for the use of the owners. Under this state of the record, we cannot say that the fair and actual valué of the property taken was not awarded, or that just compensation was not made.

Every intendment is in favor of the correctness of the report of the commissioners. Railroad Co. v. Elliott, 5 Nev. 358. The decree will be affirmed, with costs to the appellees.