Himrod v. Ft. Pitt Min. & Mill. Co.

YOUMANS, District Judge.

I dissent from the opinion of the majority of the court, for the reason that in my judgment the reversal is based upon a ground differing from the theory on which the case was tried in the court below. In the lower court the defendant in error based its defense on the theory that its right to dump waste on the Oneida claim appears on the face ol the deed. It asked an instruction to that effect. It made no request for an instruction submitting to the jury the question whether the privilege to so dump waste was reasonably necessary to the enjoyment of the right granted by the deed, its contention below, and in this court also, is that its right appears on the face of the deed, and that it is to be determined by the court as a matter of law.