« ForrigeFortsett »
those who have declared their intention to become such, who find a vein or lode upon the public land, carrying any valuable deposit, to locate and claim the same, not exceeding 1,500 feet along its length, and not exceeding 300 feet on each side of its middle at the surface, making the end lines of the claim parallel. Rev. St. § 2320 [U. S. Comp. St. 1901, p. 1424]. The right of location is in no respect made dependent upon the course of the vein beyond the limits so fixed. A location so made, and marked and claimed as further required by statute, or by the local rules and regulations of the particular mining district, when not inconsistent with statutory regulations, confers upon the locator and his assigns and successors the rights defined and specified by section 2322 of the Revised Statutes [U. S. Comp. St. 1901, p. 1425], to wit:
"The exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines extended downward vertically, 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. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as 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 ledges."
Whether the lines of the Bunker Hill claim were so laid with respect to the vein or lode outcropping within them as entitles the complainant to the extralateral right there defined and here claimed, depends upon the probative facts of the case.
In respect to the second objection urged to the bill, it is enough to say that it has heretofore been held by this court that the ownership and possession of a vein at the surface carries with it the ownership and possession of all that pertains to the location. "The mining right," as said by us in Empire State-Idaho M. & D. Co. v. Bunker Hill & S. M. & C. Co., 121 Fed. 977, 58 C. C. A. 315, "is an integral one. It is secured by a single location. The title to it is conveyed by one patent." It is a separate and distinct thing from any and every other claim. The fact that one individual, company, or corporation locates or acquires many such claims is wholly unimportant. Congress has never yet seen proper to put a limit on the number of such claims that one individual, company, or corporation may locate or acquire. Whether, in view of its well-known policy to encourage the development of the mineral wealth of the country, it shall ever deem it wise to do so, rests with Congress, and is a matter with which the courts have nothing to do. The rights which a valid location of such a claim secures to the locator and his grantees or successors are clearly defined by law, and are wholly unaffected by any subsequent conflicting location. In all such matters the first in time is the first in right. Therefore it being conceded by the defendants' answers in the present suit that there is a vein or lode outcropping within the surface boundaries of the Bunker Hill claim, and that the complainant is the owner of the surface of that claim and of the vein or lode within its boundaries, it follows, as matter of law, that, if the vein or lode so crosses the lines of the claim as to entitle its owner to extralateral rights at all, the complainant has, as against any and
every other claim not founded on a prior location, precisely the same right, by virtue of section 2322 of the Revised Statutes, to such parts of all veins, lodes, and ledges throughout their entire depth, the tops or apexes of which lie inside of its surface lines, as lie between vertical planes drawn downward verticaily through the end lines of the location extended indefinitely in their own direction.
A stipulation of the parties is to the effect that every one of the claims here in question, except the Last Chance, is subsequent in point of time to the Bunker Hill. Priority is asserted for the Last Chance only upon the fact that it was located, marked, and the notice of its location recorded, before the location notice of the Bunker Hill was recorded. A statute of the state in which the claims are situate requires such notice to be recorded within 15 days after the making of the location, in the office of the recorder of the county or with the recorder of the district designated by the resident miners, as provided by section 3103 of the Revised Statutes of Idaho of 1887. The statute, however, prescribes no penalty for a failure to record such notice.
The master found as facts that the Bunker Hill claim was located September 10, 1885, by one O'Rourke, who possessed the necessary qualifications, and who had theretofore discovered within its limits a vein of rock in place carrying silver and lead; that on the day named O'Rourke posted "a discovery notice of location," containing the name of the location and claim, the date of its location, a description of the claim by reference to such natural objects and permanent monuments as identified it, and reciting "such other matters as were then required by the laws of the United States and the territory of Idaho"; that at the same time O'Rourke marked the boundaries of the claim on the ground so that they could be readily traced, and then entered into the actual possession of the claim and commenced working it, which possession has been ever since maintained by him and his successors in interest; that on September 29, 1885, O'Rourke caused a notice of location of the claim, duly verified, to be recorded in the office of the recorder of the county in which it is situate; that prior to March 21, 1902, the complainant duly acquired, through mesne conveyances from O'Rourke, the title to the claim, and on the day last mentioned made application to the United States for a patent therefor, which application recited the facts just stated, and upon which application a patent was issued by the government to the complainant on the 17th day of November, 1903; that the Last Chance claim was duly located September 17, 1885, and the location notice thereof recorded on the 22d day of the same month; that prior to the discovery and location of the Last Chance its discoverers and locators "had actual knowledge of the discovery and location of the Bunker Hill claim; they had visited the discovery, read the notice posted thereon, saw the discovery stake, the east end stakes, and knew that the locator was in the actual possession of the claim, and was then engaged in development work thereon." The record shows that during the proceedings before the master the following stipulation was entered into by and between counsel for the respective parties:
“Mr. Heyburn: It is stipulated that the discovery of the Bunker Hill lode claim was on the 10th of September, 1885; that the acts of location, except
as to the recording, were performed at or prior to that time; and that the recording of the claim was on the 29th day of September.
"Mr. Lindley: In other words, it will be admitted by all the parties to this action that all the acts establishing a perfected location were completed prior to the acquisition of any rights asserted by respondents, or any of them, in this action; respondents reserving, however, such legal objection as they may hereafter desire to make with regard to the application of the doctrine of relation, for the failure to record the Bunker Hill location prior to the 29th day of September.
"Mr. Heyburn: No objection is raised to the sufficiency of the location of any of our claims.
"Mr. Lindley: I must make a reservation in there in reference to the Shoshone and Summit. That is the only reservation that I make.
"Mr. Heyburn: I think we will have to stipulate all or none, judge. As to the Shoshone and Summit, we will only be required to make proofs of the acts of location, and the admission goes to the effect that whatever title the locators got is vested in the Shoshone Mining Company.
"Mr. Lindley: If any title goes by that location, it is vested in you by mesne conveyances."
The record further shows that at a subsequent stage in the proceedings the following stipulation between the counsel was read in evidence: "Mr. Heyburn: I offer in evidence a stipulation entered into this day, signed in open court by the counsel for the respective parties to this suit, as follows: 'It is hereby stipulated in the above-entitled cause that if Philip O'Rourke, the locator of the Bunker Hill lode claim, were present as a witness in this case, he would testify that the west end stakes of the Bunker Hill lode claim were not put up, nor was the west end of said claim marked upon the ground by the locators, until after the location and recording of the Last Chance and Emma lode claims.' That stipulation is signed by counsel for the respective parties in this suit. I offer it in evidence, in order that it may be here in the record.
“Mr. Lindley: We will reserve a formal objection to the materiality and admissibility of it.
We do not think it necessary to decide whether a stipulation to the effect that a certain witness would, if present, testify in contradiction of one or more of the facts already agreed to by counsel, could be properly held to modify such prior stipulation, for the reason that upon the facts expressly conceded, found, and in no wise contested the Last Chance was located after the Bunker Hill, and while the latter was a valid, subsisting claim. At the time of the location of the Last Chance claim the time prescribed by the Idaho statute within which the Bunker Hill location should be recorded had not expired. The Last Chance locators had actual notice of the Bunker Hill location, had read the description of it, and the locator of the Bunker Hill was in actual possession of that claim and actually engaged in working it. No part of the claim, therefore, whether above or underground, was then open to location by any other person. Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735; Book v. Justice Mining Co. (C. C.) 58 Fed. 106; Meydenbauer v. Stevens (D. C.) 78 Fed. 787; Jordan v. Duke (Ariz.) 53 Pac.
It is conceded by the counsel for the appellants that the locators of the Last Chance could not then have entered upon the surface of the Bunker Hill claim and acquired any right as against it; but he insists that it is different in respect to such portions of its veins or lodes as lie outside of
the vertical boundaries of that claim. The mistake of the learned counsel is in supposing, as he does throughout his argument, that there is a radical difference in the nature of the right by which the locator of a valid lode claim holds the veins or lodes embraced by the surface lines extended vertically downward, and such of the veins or lodes belonging to the claim as extend in their downward course outside of its side lines; and that as to the latter adverse rights may be acquired which could not be acquired in respect to the former. As has been already said herein, there is no such distinction. The mining right is an integral one, and is precisely the same to all that belongs to the location-its surface, and all veins or lodes apexing within it, and all not apexing elsewhere, found within the surface lines extending vertically downward, as well as the extralateral right defined by section. 2322 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 1425]. The St. Louis Mining and Milling Company of Montana et al. v. Montana Mining Company, Limited (decided May 2, 1904) 24 Sup. Ct. 654, 48 L. Ed. 953. That the failure of the locator of the Bunker Hill claim to record his notice of location within the time prescribed by the Idaho statute did not work a forfeiture of the claim, there being no such penalty affixed by the statute, is well settled. Jupiter Mining Co. v. Bodie Con. Min. Co. (C. C.) 11 Fed. 666; Bell v. Bedrock T. & M. Co., 36 Cal. 214; McGarrity v. Byington, 12 Cal. 426; Johnson et al. v. McLaughlin et al. (Ariz.) 4 Pac. 130; Emerson v. McWhirter (Cal.) 65 Pac. 1036; Rush v. French (Ariz.) 25 Pac. 816. Besides, the issuance by the government of its patent for the claim is conclusive evidence of the sufficiency of the steps taken by the complainant. Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. 628, 35 L. Ed. 238; United States v. Iron & S. M. Co., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed. 571; Montana Cent. Ry. Co. v. Migeon (C. C.) 68 Fed. 811. Whether the surface lines of the Bunker Hill claim were so laid as to entitle its owner to any extralateral right at all; whether, if it exists, it should be bounded by vertical planes drawn downward through what were originally located as the end lines of the claim or through those originally located as its side lines; and whether the extralateral right claimed by the complainant and awarded it by the court below is to permit the complainant to follow the vein along its length, and not on its downward course, as prescribed by the statute-were matters of defense open to all of the defendants in the court below, and upon which much evidence was given by the respective parties.
The master, to whom the cause was referred to take the proofs and report to the court his findings of fact and conclusions of law, found, among other things, the following to be facts: That within the Bunker Hill claim there is a vein or lode of rock in place, carrying silver and lead, commonly known in the district as the "Bunker Hill Lode," the apex of which is indicated by the outcrop of the foot wall, which traverses the claim in a general northwesterly course from where it cuts the south boundary; that the foot wall is the well-defined and persistent feature of this vein, and enters the Bunker Hill claim at a point on its south line about 300 feet from the southeast corner, and, extending along its course at the surface northwesterly, passes out of the north line
of the claim about 726 feet from the northeast corner of the claim; that the Bunker Hill lode has no physical hanging wall, no marked line complement to the foot wall, in defining the limit of the fissure; that for its underlying boundary it has a well-defined, continuous bed of barren quartzite, but for its overlying boundary it has only an irregular and vague outline of the limit of mineralization, from which fact, and the peculiar geological formation of the lode, it is very difficult to define this limit with any degree of certainty, for which reason much confusion and some contradiction appears in the testimony upon this point; that the weight of the testimony shows, however, that the mineralization of this lode or ledge extending from the foot wall into the hanging wall country gradually fades in value until a point is reached 350 or 400 feet out, where the rock is practically barren; that the lode or vein, in passing through the Bunker Hill claim, takes a northwesterly and southeasterly direction, and so intersects the north and south lines of the claim, which lines, while originally located as side lines, are in fact its end lines, and the original end lines become its side lines; that there is within the surface boundaries of the Bunker Hill claim the entire apex of the vein for a length of 676 feet, measured on the line of the foot wall at the surface, and that a segment of part of that vein departs from the perpendicular in its downward course, and extends in a westerly direction under the outside of the westerly side of the claim, the same having been originally located as the westerly end line, and between vertical planes drawn downward through the end lines of the claim as above designated, so continued in their own westerly direction indefinitely; that the vein, or segment thereof, having its apex within the surface boundaries of the Bunker Hill claim on its downward course between the extended end line planes thereof, extended in their own direction, passes underneath respective portions of the surface of the following lode claims owned by the Empire State-Idaho Mining & Developing Company, namely, the Lily May, Butte, Good Luck, and Number 4, all of which are junior in point of time to the location of the Bunker Hill claim. And as conclusions of law, the master found:
"(1) That the surface lines of the Bunker Hill claim, originally located as side lines, are in law the end lines of the claim, and its extralateral right is defined by vertical planes drawn downward through these lines extended in their own direction westerly indefinitely.
"(2) That the complainant is the owner and entitled to the possession of the segment of said Bunker Hill lode and the ore-bodies thereof in controversy herein, as against the respondents Last Chance Mining Company, the Shoshone Mining Company, the Empire State-Idaho Mining & Developing Company; and that complainant is entitled to a decree against said respondents, and each of them, in accordance with these findings and conclusions, and agreeable to the practice of this court."
Certain exceptions were filed by the defendants to the master's report, but none calling in question any ruling of his in admitting or rejecting evidence. Findings of fact made without any evidence to support them may, and should, as a matter of course and of law, be disregarded; but findings made by a master in pursuance of an order to take the proofs and report the facts and conclusions of law to the court, that depend upon conflicting testimony, or upon the credibility of witnesses, especially where, as in the present case, they are approved by the trial