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easterly side of the New York lode mining | were apparently side lines were adjudged end claim is not the end line of the Last Chance lode mining claim.

The fourth question presents a matter of importance, particularly in view of the inferences which have been drawn by some trial courts, state and national, from the decisions of this court. That question

is

lines because the vein on its course passed through them, the location being not along the course of the vein but across it. But in neither of these cases was the question now before us presented or determined. All that can be said to have been settled by them is, first, that the lines of the location as made by the locator are the only lines that will be recognized; that the courts have no power to establish new lines or make a new location; second, that the contemplation of the statute is that the location shall be along the course of the vein, reading, as it does, that a The decisions to which we refer are Flag- mining claim "may equal, but shall not exstaff Silver Mining Company v. Tarbet, 98 ceed, 1,500 feet in length along the vein or U. S. 463 [25: 253]; Iron Silver Mining Com-lode;" and, third, that when subsequent expany v. Elgin Mining & S. Company, 118 U. plorations disclose that the location has been S. 196 [30:98]; Argentine Min:ng Company made, not along the course of the vein, but v. Terrible Mining Company, 122 U. S. 478 across it, the side lines of the location become [30: 1140]; King v. Amy & S. Consol. Min-in law the end lines. Nothing was said in ing Company, 152 U. S. 222 [38 419].

"If the apex of a vein crosses one end line and one side line of a lode mining claim, as located thereon, can the locator of such vein follow it upon its dip beyond the vertical side line of his location?"

Chance Mining Company v. Tyler Mining Company, 157 U. S. 683, 696 [39: 859, 865], was before us (in which the question here stated was presented but not decided, the case being disposed of on another ground) we said, after referring to the prior cases, "but there has been no decision as to what extraterritorial rights exist if a vein enters at an end and passes out at a side line."

We pass, therefore, to an examination of the provisions of the statute. Premising that the discoverer of a vein makes the location, that he is entitled to make a location not exceeding 1,500 feet in length along the course of such vein and not exceeding "300 feet on each side of the middle of the vein at the surface," that a location thus made dis

either of these cases as to how much of the Two of these cases have been already no- apex of the vein must be found within the ticed in this opinion. In Flagstaff Silver surface, or what rule obtains in case the vein Mining Company v. Tarbet a surface loca-crosses only one end line. So, when Last [88] tion, 2,600 feet long and 100 feet wide had been made. This location was so made on the supposition that it followed lengthwise the course of the vein, and the claim was of the ownership of 2,600 feet in length of such vein. Subsequent explorations developed that the course of the vein was at right angles to that which had been supposed, and that it crossed the side lines, so that there was really but 100 feet of the length of the vein within the surface area. It was held that the side lines were to be regarded as the end lines. In Iron Silver Mining Company v. Elgin Mining & 8. Company the location was in the form of a horseshoe. The end lines were not parallel. The location was quite irregular in form, and [87] *inasmuch as one of the side lines was sub-closes end and side lines, that he is required stantially parallel with one of the end lines it was contended that this side line should be considered an end line, and this although the vein did not pass through such side line. But the court refused to recognize any such contention and held that the end lines were those which were in fact end lines of the claim as located, and that as they were not parallel there was no right to follow the vein on its dip beyond the side lines. In Argentine Mining Company v. Terrible Mining Company the claims of the plaintiff and defendant crossed each other, and in its decision the court affirmed the ruling in Flagstaff Silver Mining Company v. Tarbet, saying (p. 45 [30: 1142]):

"When, therefore, a mining claim crosses the course of the lode or vein instead of being 'along the vein or lode,' the end lines are those which measure the width of the claim as it crosses the lode. Such is evidently the meaning of the statute. The side lines are those which measure the extent of the claim on each side of the middle of the vein at the surface."

In King v. Amy & S. Consol. Mining Company the prior cases were reaffirmed and those lines which on the face of the location

to make the end lines parallel, that by such parallel end lines he places limits, not merely to the surface area, but limits beyond which below the surface he cannot go on the course of the vein, that it must be assumed that he will take all of the length of the vein that he can, we find from § 2322 that he is entitled to "all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically." Every vein whose apex is within the vertical limits of his surface lines passes to him by virtue of his location. He is not limited to only those veins which extend from one end line to another, or from one side line to another, or from one line of any kind to another, but he is entitled to every vein whose top or apex lies within his surface lines. Not only is he entitled to all veins whose apexes are within such limits, but he is entitled to them throughout their entire depth, "although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations." In other words, given a vein whose apex is within his surface limits, he can pursue that vein as far

as he pleases in its downward course outside [tion. "Our laws have attempted to establish the vertical side lines. But he can pursue a rule by which each claim shall be so many the vein in its depth only outside the vertical feet of the vein, lengthwise of its course, to side lines of his location, for the statute pro-any depth below the surface, although latervides that the "right of possession to such ally its inclination shall carry it ever so far [89] outside parts of such veins or ledges shall from a perpendicular." Flagstaff Silver Minbe confined to such portions thereof as lie be- ing Company v. Tarbet, 98 U. S. 463, 468 tween vertical planes drawn downward as [25: 253, 255]. above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or lodes."

This places a limit on the length of the vein beyond which he may not go, but it does not say that he shall not go outside the vertical side lines unless the vein in its course reaches the vertical planes of the end lines. Nowhere is it said that he must have a vein which either on or below the surface extends from end line to end line in order to pursue that vein in its dip outside the vertical side lines. Naming limits beyond which a grant does not go is not equivalent to saying that nothing is granted which does not extend to those limits. The locator is given a right to pursue any vein, whose apex is within his surface limits, on its dip outside the vertical side lines, but may not in such pursuit go beyond the vertical end lines. And this is all that the statute provides. Suppose a vein enters at an end line, but terminates half way across the length of the location, his right to follow that vein on its dip beyond the vertical side lines is as plainly given by the statute as though in its course it had extended to the farther end line. It is a vein, "the top or apex of which lies inside of such surface lines extended downward vertically" and the same is true if it enters at an end and passes out at a side line.

These conclusions find support in the fol|lowing decisions: Stevens v. Williams, 1 McCrary, 480, 490, in which is given the charge of Mr. Justice Miller to a jury, in the course of which he says: "You must take all the evidence together; you must take the point where it ends on the south, where it ends on the north, where it begins on the west and is lost on the east, and the course it takes; and from all that you are to say what is its general course. The plaintiff is not bound to lay his side lines perfectly parallel with the course or strike of the lode, so as to cover it exactly. His location may be made one way or the other, and it may so run that he crosses it the other way. In such event his end lines become his side lines, and he can only pursue it to his side lines, vertically extended, as though they were his end lines, but if he happens to strike out diagonally, as far as his side lines include the apex, so far he can pursue it laterally." Wakeman v. Norton, decided by the supreme court of Colorado, June 1, 1897, 49 Pac. 283, in which Mr. Justice Goddard, whose opinions, by virtue of his long experience as trial judge in the mining districts of Leadville and Aspen, as well as on the supreme bench of the state, are entitled to great consideration, said, p. 286: “In instructing the jury that, in order to give any extralateral rights, it was essential that the apex or top of a vein should on its *course pass [91] Our conclusions may be summed up in these through both end lines of a claim, the court propositions: First, the location as made on imposed a condition that has not heretofore the surface by the locator determines the ex-been announced as an essential to the exertent of rights below the surface. Second, the cise of such right in any of the adjudicated end lines, as he marks them on the sur- cases." Fitzgerald v. Clark, 17 Mont. 100 face, with the single exception hereinafter no- | ticed, place the limits beyond which he may not go in the appropriation of any vein or veins along their course or strike. Third, every vein "the top or apex of which lies inside of such surface lines extended downward vertically" becomes his by virtue of his location, and he may pursue it to any depth beyond his vertical side lines, although in so doing he enters beneath the surface of some other proprietor. Fourth, the only exception to the rule that the end lines of the location as the locator places them es[90]tablish the limits beyond which he may not go in the appropriation of a vein on its course or strike is where it is developed that in fact the location has been placed, not along, but across, the course of the vein. In such case the law declares that those which the locator called his side lines are his end lines, and those which he called end lines are in fact side lines, and this upon the proposition that it was the intent of Congress to give to the locator only so many feet of the length of the vein, that length to be bounded by the lines which the locator has established of his loca

[30 L. R. A. 803], a case now pending in this
court on writ of error. Tyler Mining Com-
pany v. Last Chance Mining Company, court
of appeals, ninth circuit, decided by Circuit
Judge McKenna, now a justice of this court,
Circuit Judge Gilbert and District Judge
Hawley, 7 U. S. App. 463. Consolidated Wy-
oming Gold Mining Company v. Champion
Mining Company, circuit court northern dis-
trict California, decided by Hawley, District
Judge, 63 Fed. Rep. 540. Tyler Mining Com-
pany v. Last Chance Mining Company, cir-
cuit court district of Idaho, decided by Beat-
ty District Judge, who in the
of his opinion pertinently observed: "What
reason under the law can be assigned
why these rights shall not apply when
his location is such that his ledge passes
through it in some other way than
from end to end? The law does not say
that his ledge must run from end to end, but
he is granted this right of following 'all veins,
lodes, and ledges throughout their entire
depth, the top or apex of which lies inside of
his surface lines.' Upon the fact that an apex
is within his surface lines, all his underground

course

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rights are based. When, then, he owns an | claim situated in the "Summit Valley" min-
apex, whether it extends through the entire ing district in Silver Bow county, Montana.
or through but a part of its location, it The defendants in error own two-thirds
should follow that he owns an equal length of interest, and the plaintiff in error one-third
the ledge to its utmost depth. These are the interest in the "Niagara" lode mining claim
important rights granted by the law. Take situated in the same district and county.
them away, and we take all from the law that The "Niagara" lode lies alongside of the
is of value to the miner." 71 Fed. Rep. 848,"Black Rock" lode so that the south side
851. Carson City Gold & Silver Mining Com-line of the "Niagara" forms or is a part of
pany v. North Star Mining Company, circuit the north side line of the "Black Rock" lode.
court northern district of California, decided The "Black Rock" lode is the older of the
by Beatty, District Judge, 73 Fed. Rep. 597. two locations. As appears from the plead-
Republican Mining Company v. Tyler Minings in the cause the vein or lead crosses
ing Company, circuit court of appeals ninth the east end line and south side line of the
circuit, decided by Circuit Judges Gilbert and "Niagara" lode 513 feet west of the north-
Ross and District Judge Hawley, 48 U. S. east corner of the "Black Rock" lode and
App. 213. See also 2 Lindley on Mines, § 591. dips to the south and under the surface of
The fourth question, therefore, is answered the "Black Rock" lode claim.
in the affirmative.

The fifth question in effect seeks from this 92] court a decision of the whole case, and therefore is not one which this court is called upon to answer. Cross v. Evans, 167 U. S. 60 [42:77]; Warner v. New Orleans, 167 U. S. 467 [42:239].

It will therefore be certified to the Court of Appeals that the first question is ansuered in the affirmative, the third in the negative, the fourth in the affirmative. The second and fifth are not answered.

WILLIAM A. CLARK, Piff. in Err.,
WILLIAM F. FITZGERALD et al.

D.

(See S. C. Reporter's ed. 92, 93.)

1.

Del Monte Mining Co. v. Last Chance Min-court was affirmed. ing Co. 171 U. S. 92 [ante, 72] followed.

2.

If the apex of a vein crosses one end line and one side line of a lode mining claim, as located thereon, the locator of such vein can follow it upon its dip beyond the vertical side line of his location.

The plaintiff in error entered upon that part of the vein east of the point where it crosses the division side line between the "Black Rock" and "Niagara" lode claims and extracted ore from the said vein on its dip under the "Black Rock" lode at the point above described.

Thereupon the defendants in error, who, as stated supra, own two-thirds interest in the "Niagara" lode claim, brought an action asking for an accounting and judgment for two thirds the value of the ore extracted by the plaintiff in error. Judgment was rendered against the plaintiff in error for the sum of $27,242.54 being two thirds the value of the ore extracted, and for ($234.50) two hundred and thirty-four and 50-100 dollars, the cost of the suit.

An appeal was taken to the supreme court of the state and the judgment of the lower

The questions presented by this record for decision are raised solely by the judgment roll consisting of the pleadings and judgment of the lower court and opinion of the supreme

IN ERROR to the Supreme Court of the State of Montana to review the judgment of that court affirming the judgment of the District Court of the County of Silver Bow in said state in favor of the plaintiffs, William F. Fitzgerald et al., against the defendant, William A. Clark, for damages for ores extracted from the Niagara lode mining claim in said county and state, and adjudging that two thirds of the vein in controversy are the property of the plaintiffs. Affirmed.

See same case below, 17 Mont. 100 [30 L. R. A. 803].

This cause comes here on a writ of error directed to the supreme court of the state of Montana, and the questions involved grow out of the following state of facts:

[No. 145.]

This cause presents to this ccurt for the first time a new question for adjudication. In some respects analogous questions have

Argued December 7, 8, 1897. Decided May already been settled by this tribunal, but the 23, 1898. exact question here presented has never been decided.

The plaintiff in error is the owner and in possession of the "Clack Rock" lode mining

Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 696 (39:865).

The apex of the vein or lode of the "Niagara" claim crosses the east end line and the south side line of said "Niagara" claim. The plaintiff in error entered upon said vein upon its downward course or dip into the earth and extracted therefrom certain valuable ores, for an accounting of which this action was brought.

The ore taken by the plaintiff in error was from that portion of the vein which had its apex within the surface lines of the "Niaga

Messrs. Robert B. Smith and Robert L. ra," but the ore was taken from the vein on Word, for plaintiff in error: its downward course or dip, the vein dipped to the south and underneath the "Black Rock" claim, and it was upon this dip or downward course of the said vein that the plaintiff in error entered and extracted the ore sued for.

The question thus presented for determi

court of the state.

nation by this court by the pleadings in this case is as follows: Where a vein or lead of quartz in place crosses one end line of the surface location as marked upon the ground, and also crosses one of the side lines of said location, has the owner or patentee of such location a right to follow the said lead, or so much thereof as has its apex within the surfact lines of his location on its pitch or dip into the earth outside of planes drawn vertically downward through the surface lines of his location?

By 2320 of the Revised Statutes of the United States it will be seen that the first requirement of the statute in respect to the it frequently happens that the side lines are claims shall be parallel, and that so much vein as lies between planes drawn vertically downward through the end lines until the ledge is intersected by such planes belongs to the locator on its dip into the earth. The lines designated by the locator in his surface location as end lines are not necessarily such; it frequently happens that the side lines are in fact the end lines of the lode or vein.

Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 463 (25: 253); Argentine Min. Co. v. Terrible Min. Co. 122 U. S. 478 (30: 1140).

If, then, side lines which are not parallel become end lines by reason of having been laid across the strike of the vein, has the claimant any extralateral rights?

What rights, then, can a claimant have whose location is so made that one of the lines he designates as an end line, and ore of his side lines, crosses the vein or ledge so that the same departs from the claim through one end line and one side line?

As the end lines of the "Niagara" claim, or rather the surface lines of the "Niagara," crossed by the vein or lode are not parallel, have the respondents then any extralateral or extraterritorial right? This question is answered in the negative by the following authorities:

Iron Silver Min. Co. v. Elgin Иin. & Smelting Co. 118 U. S. 196 (30: 98), 14 Fed. Rep. 377; Montana Co. v. Clark, 42 Fed. Rep. 626; King v. Amy & S. Consol. Min. Co. 152 U. S. 222 (38: 419); Colorado C. Consol. Min Co. v. Turck, 4 U. S. App. 290, 50 Fed. Rep. 888, 2 C. C. A. 67; Tombstone Mill. & Min. Co. v. Way Up Min. Co. 1 Ariz. 426; Blue Bird Min. Co. v. Largey, 49 Fed. Rep. 291; McCormick ▼. Varnes, 2 Utah, 355.

Mr. James W. Forbis, for defendants in

error:

What is the effect of a vein crossing both end lines of a claim when in its course it passes through a side line?

This court has in express terras stated that the question here presented has never been by this court decided.

Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683 (39: 859).

claim and each may have a different course with many variations therefrom, but the line of the dip for one and all is in the same direction-the direction fixed by the end line.

Whatever point on the claim may be selected, whether it be at the end lines or the center of the claim, there is no uncertainty as to what is the plane of the claim, for it has been determined by the fixing of the end lines.

The statute expressly declares that the claimant shall have "all veins, lodes, or ledges throughout their entire depth, the top or apex of which lie inside such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from the perpendicular in their course downward as to extend cutside the vertical side lines of such surface locations."

The question, so far as this court is concerned, stands undecided.

In not a single case cited by plaintiff in error was the question here in issue discussed or decided.

On the other hand, this identical question has arisen and been decided, as we contend is correct, in the following cases:

Tyler Min. Co. v. Last Chance Min Co. 7 U. S. App. 463, 54 Fed. Rep. 284, 4 C. C. A. 329; Consolidated Wyoming Gold Min. Co. v. Champion Min. Co. 63 Fed. Rep. 540; Del Monte Min. & Mill. Co. v. New York & L. C. Min. Co. 66 Fed. Rep. 212, Tyler Min. Co. v. Last Chance Min. Co. 71 Fed. Rep. 848; Republican Min. Co. v. Tyler Min. Co. 48 U. S. App. 213, 79 Fed. Rep. 733, 25 C. C. A. 178; Carson City Gold & S. Min. Co. v. North Star Min. Co. 73 Fed. Rep. 597; Fitzgerald v. Clark, 17 Mont. 100, 30 L. R. A. 803 (the case at bar).

The question is also discussed and the same principle announced in

Doe v. Sanger, 83 Cal. 203.

Mr. Justice Brewer delivered the opinion of the court:

This case is before us on error to the su

preme court of Montana. It is unnecessary to state its facts in detail, and it is sufficient to say that the answer given to the fourth question in the opinion just filed compels an affirmance of the judgment, and it is so ordered.

JAMES JOHNSON, Plff. in Err.,

อ.

GEORGE F. DREW.

(See S. C. Reporter's ed. 93-100.)

Equitable pleas in ejectment—defense against patent for land.

1. The rejection of equitable pleas in eject-
NOTE.- As to pre-emption rights-see note
to United States v. Fitzgerald, 10: 785.
That patents for land may be set aside for

The act of May 10, 1872, required that the end lines of cach claim should be parallel, and prohibited the claimant fron passing beyond these end lines extended downward in-fraud, see note to Miller v. Kerr. 5: 381. definitely in their own direction.

As to errors in surveys and descriptions in patents for lands; how construed,-see note to

There may be numerous veins within the Watts v. Lindsey, 5: 423.

ment is immaterial, when the defendant could
give evidence of all matters of defense set up
In the equitable pleas under the plea of not
guilty filed by him.

2. A party cannot defend against a patent for
land, duly issued by the United States upon
an entry made at a local land office, on the
ground that he was in actual possession of
the land at the time of the issue of the patent.
[No. 239.]

Submitted April 28, 1898. Decided May 31, 1898.

for in the United States land laws." The patent to the plaintiff was issued September 30, 1882, and recited that it was upon a location of Valentine scrip, and in his equitable plea defendant averred that the patent was predicated upon an entry at the local land office of the United States at Gainesville, Florida. On August 18, 1856, Congress passed an act (11 Stat. at L. 87, chap. 129) containing this provision:

"That all public lands heretofore reserved for military purposes in the state of Florida, which said lands in the opinion of the Secretary of War, are no longer useful or desired for such purposes, or so much thereof as said Secretary may designate, shall be, and are hereby, placed under the control of the General Land Office, to be disposed of and sold in the same manner and under the same

IN ERROR to the Supreme Court of the State of Florida to review a judgment of that court affirming the judgment of the Circuit Court of that state in an action of ejectment brought by George F. Drew, plaintiff, against James Johnson, to recover possession of a tract of land, the judgment being for plain-regulations as other public lands of the tiff. Affirmed.

Statement by Mr. Justice Brewer:

In September, 1866, defendant in error commenced an action of ejectment in the circuit court of the state of Florida, for the county of Hillsborough to recover possession of a tract of land described as follows:

United States: Provided, That said lands shall not be so placed under the control of said General Land Office until said opinion of the Secretary of War, giving his consent, communicated to the Secretary of the Interior in writing, shall be filed and recorded."

At that time there was in existence what was known as the Fort Brooke military res"Lot eight (8) of section nineteen (19), ervation, near the town of Tampa, Florida. township twenty-nine (29) south, of range As appears from the testimony offered by the nineteen (19) east, and lot seven (7) of sec-defendant, on July 24, 1860, the Secretary of tion twenty-four (24), in township twenty- War wrote to the Secretary of the Interior as nine (29) south, of range eighteen (18) east, follows: containing about forty and nineteen onehundredths (40.19) acres."

War Department, July 24, 1860. Sir: Referring to the correspondence be tween the two departments on the subject, have the honor to inclose to you a report of the quarter-master general showing that Fort Brooke is now in readiness to be turned over to the Department of the Interior, in pursuance of the arrangements made to that effect.

Very respectfully, your obedient servant, John B. Floyd, Secretary of War. Hon. J. Thompson, Secretary of the Interior.

The defendant, now plaintiff in error, filed a plea of not guilty and also a plea based on equitable grounds. A demurrer to this lat-I ter plea was sustained, and thereupon the defendant asked leave to file an amended equitable plea. This application was denied, the court holding that the grounds of defense set up therein were not sufficient. That plea alleged in substance that the plaintiff's title rested on a patent from the United States, issued on a location of Valentine scrip; that such scrip was, by the terms of the statute under which it was issued, to be located only upon unoccupied and unappropriated lands of the United States; that the land in controversy was, at the time of the location of the scrip, a part of Fort Brooke military reservation, and was also in the actual occupancy of the defendant. The case came on for trial in September, 1889, and the defend-terior Department. Probably the exigencies ant offered evidence in support of all of his defenses, including therein the matters set up in the equitable plea which he had been refused leave to file. This testimony was held insufficient oy the court, and the trial resulted in a verdict and judgment for the plaintiff, which judgment was thereafter, and in June, 1894, aflirmed by the supreme court of the state; whereupon the defendant sued out this writ of error.

The Valentine scrip act was passed April [95]5, 1872 (17 Stat. at L.649), chap. 89, *and authorized the location of such scrip on "the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than the subdivisions provided

*The inclosed report from the quartermaster [96] general stated that all the movable property of the government had been sold, and that there was no reason why the military reservation should not be turned over to the In

of the war, which soon thereafter commenced, prevented any further action by either department, for on April 6, 1870, the following communication was sent by the Secretary of War to the Secretary of the Interior:

War Department, Washington City,
April 6, 1870.

The Honorable Secretary of the Interior.
Sir: I have the honor to reply to a letter
addressed to this department by the Commis-
sioner of the General Land Office on the 26th
ultimo relative to the public lands occupied
by this department for military purposes at
Fort Brooke, Florida, and to inform you
that there is no longer any objection to their

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