Arizona republican., 1914-11-27
KEYSTONE WINS !. IN TUNNEL CASE

Holding that the state constitution does not authorize the condemnation as a private way of necessity of such tunnel site as that sought bv the Inspiration Consolidated Copper Company of Miami through the Cop- per Hill mining claim belonging to the New Keystone Copper company. the supreme court late Wednesday handed down an opinion affirming the decision of the lower court. The action, which was one of the hardest fought mining cases ever ar i gued in this state, was commenced hy the Inspiration company in 1412 against the New Keystone company 1 to condemn a right of way for an i underground passage through the property of the latter company for the purpose of transporting ores from the Live Oak group of mines to the working shaft in he Inspiration group, and thence to the surface. The Case was heard in the su arior court Of Gila county which sustained the demurrer of the defendant to the complaint of the Inspiration con- , pany
 It appears that the Inspiration corl- Pany started the construction of the | tunnel or drift and the Keystone company upon discovery of the in tention of the company and work be- ing done, obtained an injunction from the superior court of Gila county stopping further work and thereupon the Inspiration commenced sut to condemn a right of way under inc right of eminent domain given by section Y. article of the consti- tution of Arizona, which provides
 that private property shall not ba taken for private use, except for prlVate ways of necessity. and fo- drains. fumes or ditches, on or across the land of others for mining. agri- cultural domestic or sanitary pur- poses. No private property shall be taken or damaged for public or pri- Vate use without just compensation. The Inspiration company alleged that It was necessary to treat it's Cies m large quantities on account of their low grade: that it's Inspiration ana Live Oak groups were separated rom each other by the New Key stone group and that it had sunk shafts upon both of it's groups of claims and had run tunnels or drift; from the shafts up to the Keystone line. The company further claimed that for the successful working of the Live Oak group of mines and the utilization of its mill or concentrator 1t was necessary and indispensable that it have a right of way across and throughout the length of the Copper Hill claim of the New Key stone company for the construction, maintenance and operation of a tun-
 nel or drift and that the further de- velopment and mining of the Live Oak claim would make them of great I value.
 The lower court sustained the de- murrer of the New Keystone com pany upon the ground tHat the right
 of way for the tunnel or drift sougn.
 to be condemned was to be devoted to private use and not public use. | The supreme court holds that it is
 not the public or private character Of the use to which the property is to be devoted that authorizes it's talk ing, but rather the public policy as announced in the constitution, or. in
 the absence of constitutional limita-
 tions as announced by the legislative
 body
 J In closing the opinion says. "As the tunnel site here sought to be Il condemned is clearly for the individ-
 ual uses and purposes of the appel N lant for the profitable mining anI
 milling of it's private ores, it is in
 dispensably essential that the legis-
 lature authorize it's condemnation ny M direct and unambiguOus language be- | fore the court could entertain this
 proceeding. The lawmaking body
 has not defined a tunnel such as the
 one here desired as private way of
 necessity and, therefore. the power of
 condemnation in this instance lies
 dormant. The constitutional provi- N sion to the effect that private proper
 ty may be condemned for private
 ways of necessity not having been
 supplemented by proper legislation
 defining what private ways of neces-
 sity' are. the judgment of the trial WI court must be affirmed"
 MI Judge Cunningham specially con- MI cured in affirming the judgment of H the lower court.
 WI Edward w. Rice, of Globe. anC M Curtis H. Lindley. of San Francisco author of "Lindley on Mines" ant
 who Is considered the worlds great.
 est authority on mining law, repre-
 scented the Inspiration company, an, Alderman & Elliott of Globe, lp H. reared for the New Keystone Copper MI company.