Headrick v. Larson

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The bill is so framed as to present two questions: First, whether the appellees could lawfully condemn the right of way for a tunnel; and, second, whether, sustaining such right, the appellants can be decreed to have the use of the tunnel in common with the appellees. The bill shows that the first of the questions had been decided in the affirmative by the court below in two causes pending therein, one the action to condemn the right of way, and the other a suit in equity brought by the appellants to enjoin the appellees from extending the [96] tunnel through their mining property. One of the' grounds of the demurrer to the bill in the present case was the pendency of these prior causes and the decisions therein rendered. The judgment on the demurrer specifies no particular ground on which it was sustained' in the court below. It may be assumed that it was sustained on the ground .just indicated, as well as for want of equity. The stipulation for the consolidation of all these proceedings and for the submission to this court of the questions involved therein is filed in this court. There was no stipulation in the court below, nor were the causes there consolidated. The jurisdiction of this court is confined to the review of error committed in the court below in the cause which is brought before us upon appeal. It does not extend to errors committed in other causes. The counsel who appear for the appellees in this court were not the counsel who signed the stipulation, and they now object to the jurisdiction of this court to review any question which is not directly involved in this appeal. This they have the right to do. It is not alleged in the bill, nor is it contended, that the appellants cannot obtain as full, complete, and adequate relief as to the appellees’ assertion of right to condemn the right of way for a tunnel in the prior causes so pending as they could in this. It is sought to maintain the present suit, so far as it concern’s the matters involved in the prior suits, on the equitable ground of the prevention of a multiplicity of suits; but it is obvious that the appellants cannot maintain a separate suit for the sole purpose of preventing a multiplicity of their own suits, suits which the}>' have brought and which are still pending. The parties cannot by their stipulation inj ect into the present appeal matters not determined in the cause in which the decree which is appealed from was rendered, or give to this court jurisdiction to consider the same. Hoe v. Wilson, 9 Wall. 501, 19 L. Ed. 762; Washington County v. Durant, 131 U. S. Append, lxxx; Montgomery et al. v. Anderson et al., 21 How. 386, 16 L. Ed. 160; Mills v. Brown, 16 Pet. 525, 10 L. Ed. 1055; South Carolina v. Wesley, 155 U. S. 542, 15 Sup. Ct. 230, 39 L. Ed. 254. The bill alleges that the tunnel has been constructed from the place of its outlet to and through the mining claims of the appellants. Assuming, as we must on this appeal, but not deciding, that the appellees were authorized to condemn the right of way for that tunnel, the single question presented for our decision is whether or not the appellants can be decreed to have a use thereof in common with the ap-pellees. The appellants contend that the right to such common use is implied in the very fact that the right of way for the tunnel has been condemned by judicial proceedings in the exercise of eminent domain, and that such right of way can have been condemned only for a public use. They cite Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, as authority for that contention. That was a case in which it was sought to condemn a right of way, so-called, by enlarging a ditch which had been made to convey water across the land of the defendant under a statute of the state of Utah, permitting condemnation by an individual for the purpose of obtaining water for his land or for mining purposes. The court sustained the right, in view of special conditions obtaining in the state of Utah as to agricultural and mining industries, and held that a statute of that state permitting an [97] individual to enlarge the ditch of another, and thereby obtain water for his own land, is within the legislative power of the state, and does not violate any provision of the federal Constitution. Said the court: “We simply say that in this particular case, and upon the facts stated in the findings of the court, and having reference to the conditions already stated, we are of opinion that the use is a public one, although the taking of the right of way is for the purpose simply of thereby obtaining thé water for an individual where It Is absolutely necessary to enable him to make any use whatever of his land, and which will be valuable and fertile only if water can be obtained. Other landowners adjoining the defendant in error, if any there are, might share in tire use of the water by themselves taking the same proceedings 1o obtain it.” In Strickley v. Highland Boy Min. Co., 200 U. S. 527, 26 Sup. Ct. 301, 50 L. Ed. 581, the court said of the decision in Clark v. Nash : “In discussing what constitutes a public use, it recognized the inadequacy of use by the general public as a universal test.” If the appellants were here seeking to condemn a right of way to widen the tunnel of the appellees, and showing a necessity therefor for the purpose of laying their own tracks in the widened portion thereof for working their mines and extracting ores from their subterranean ledges, the doctrine of Clark v. Nash would be pertinent; but the purpose of the bill is to obtain the right to use a tunnel which has been made by the appellees at their own expense for their own purposes, with track and facilities, it may be assumed, no more than sufficient for their own use. We find no statutory authority, no precedent, and no recognized principle of law or of equity upon which to base such a right. In section 257a, of Rewis on Eminent Domain, it is said: “It would seem clear that, under the general rule already stated, nothing but an express authority or absolute necessity created by tlie Legislature itself could justify one railroad company in taking the tracks of another company, or even the joint use of such tracks.” There is no legislative provision in Idaho which authorizes the granting to one of the right to use a tunnel acquired by another under condemnation proceedings. Section 5212 of the Revised Statutes of 1887 of that state provides that property appropriated to public use “shall not be taken unless for a more necessary public use than that to which it has already been appropriated.” But the present suit is not a suit to condemn a right of way over the tunnel. It is a suitdn equity to compel the joint use of a right of way already condemned by another, and to obtain the right to participate in the benefits thereof, on the theory that the condemnation has been made for a public use, and that the appellants are members of the public for whom such condemnation has been adjudged. There is no allegation showing the necessity for such common use, and nothing to show that the appellants cannot proceed and condemn a right of way for a tunnel, as was done by the appellees. The decree of the Circuit Court is affirmed.