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The bill avers that the appellee owns and is in possession of the Stemwinder claim, the surface ground of which is indicated by the parallelogram marked on the diagram "Stemwinder Amended Location," except such portions thereof as are included within the surface lines of the Emma and Last Chance claims, and excepting, also, such parts of the lode or vein having its apex within the Stemwinder boundaries as lie within the surface lines of the Emma and Last Chance, and as lie underground between planes drawn downward through the end lines of the Emma claim produced southwestwardly to their intersection, and between planes drawn downward through the end lines of the Last Chance claim extended indefinitely in their own direction. The bill alleges that the course of the apex of the vein at the surface is as shown upon the diagram, and that its downward course is westwardly; that the appellee owns and is in possession of all of the veins. so apexing within the surface lines of the Stemwinder, throughout its entire depth, on its downward course between the end-line planes, as indicated on the diagram, except such parts thereof as are embraced by the end-line planes of the Emma and Last Chance claims. The bill avers that the appellant claims an estate or interest adverse to the appellee in the Stemwinder claim, and in such part of its vein as lies westerly of and beyond a vertical plane drawn downward through the westerly boundary of the Stemwinder claim, and northwesterly of and beyond a vertical plane drawn downward through the northwesterly boundary of the Last Chance claim, and between vertical planes drawn downward through the end lines of the Stemwinder claim, extended westwardly indefinitely in their own direction; that the claim of right so asserted by the appellant is false and groundless, and a cloud upon the appellant's title; that since September 1, 1899, the appellant, by means of underground workings, of which it has exclusive possession and control, has penetrated into that part of the underground vein so claimed to lie within the Stemwinder's extralateral boundaries, and beyond the end-line plane of the northern boundary of the Last Chance claim; and that the said underground vein, where so penetrated, contains large and valuable ore bodies, which appellant is extracting, and threatens to extract, unless enjoined from so doing.
The demurrer and the plea filed by the appellant to the bill in the court below were before this court, and were here considered and determined, on the appellant's appeal from the order of the trial court awarding the appellee an injunction. The decision here was that the bill was good and sufficient, and that the plea, in both of its branches, was bad. Empire State-Idaho M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 58 C. C. A. 311, 121 Fed. 973. That decision has become the law of the case, and those points, again elaborately discussed by counsel for appellant, are not open to further consideration.
The appellant, in its answer to the bill, denies that the appellee is now, or ever was, in the possession of, or entitled to the possession of, the Stemwinder lode claim, as described in the bill, or was ever in the possession of any part of the Stemwinder lode claim, except as particulary set forth in the answer; denies that the diagram annexed to the bill as an exhibit correctly shows the surface boundaries of the
Stemwinder claim, or the course of the apex of the vein, or of any veins, at the surface through that claim, or that such vein or any vein passes through the surface of the Stemwinder claim as shown upon that diagram. The appellant admits in its answer that there is within what it terms the pretended Stemwinder claim, and within the Emma and Last Chance lode claims, a vein of mineral-bearing rock, but denies that the general course or top or apex of the same at the surface is as stated in the bill, or as shown upon the diagram annexed thereto; denies that the Stemwinder claim has any northerly boundary line, except as the southerly line of the Emma lode claim may be so considered; denies that the lode or vein has a downward course as indicated upon the diagram annexed to the bill, and denies that it passes on its downward course between the end lines claimed by the appellee as the end lines of the Stemwinder claim, or extends indefinitely beyond a vertical plane drawn through the line claimed by the appellee as the westerly boundary thereof; denies that the appellee is or ever was the owner in fee of the Stemwinder claim, or is or ever was the owner in fee or at all of the vein beyond the westerly line of the Stemwinder claim; denies that the appellant claims any estate, right, title, or interest in the Stemwinder claim, and denies that the appellee has any interest, right, or title to any vein which may intersect or lie within the Stemwinder claim after such vein has departed from the exterior boundary lines thereof, or to any vein lying westerly of and beyond the westerly boundary line of the Stemwinder claim, or beyond the northwesterly boundary line of the Last Chance claim, between vertical planes drawn through the end lines of the Stemwinder, as claimed by the appellee; denies that the Stemwinder claim is of any value, but admits that the portion of the vein in controversy is of the value of $50,000. The appellant then alleges that it is the owner of the ledge and ore bodies here in controversy, because of its ownership of the San Carlos lode claim; that the vein in which the said ore bodies lie passes on its strike or course through both end lines of the San Carlos claim, and outcrops throughout the entire length thereof, and descends into the earth on planes drawn through the end lines thereof in a southerly direction to and through the ore bodies claimed by the appellee in this suit, and that such ore bodies are the property of the appellant by reason of the fact that they are a part of the lode having its top or apex within the San Carlos claim, and are reached through continuous workings on that claim, following on the downward course of the ledge within planes drawn on the end lines thereof, and not otherwise; that the Stemwinder claim is unpatented, and that its boundaries are not marked upon the ground at all; that it lies far to the east of the ledge and ore bodies sought to be recovered in this suit, and has no connection therewith; that there is no means of approach to said ore bodies or to said portions of the ledge from the Stemwinder claim, and that no developments from the Stemwinder claim to the ore bodies in controversy have been made, and that there are intervening between the said ore bodies and the Stemwinder claim the Emma and Last Chance patented mining claims, belonging to the Last Chance Mining Company, not a party to this suit; that, in a suit heretofore pending and determined in this court, the Last
Chance Mining Company was adjudged to be the owner of the Last Chance and Emma lode claims, and of the ledge and ores therein, as against the appellee, by reason of priority and right of title thereto; that the appellee has no right of way or ingress or egress through the said Emma and Last Chance claims, and has no right to follow from the Stemwinder claim to the ore bodies in controversy through or over the Emma and Last Chance claims. The appellant then alleges that the Stemwinder claim, such as it is, is junior in point of time and right to the Viola, San Carlos, and Skookum lode claims, owned by the appellant; that the Stemwinder claim never did extend north of the south line of the Emma claim, as patented, and that the locators and claimants of the Stemwinder claim, under whom the appellee claims title, did, by agreement, in conjunction with the owners of the Emma and Last Chance claims, erect a monument on the south line of the Emma claim for the purpose of marking the extreme northern limit of the Stemwinder claim, and of any right which that claim had on the surface or underground; that no stakes or monuments marking the pretended north end line of the Stemwinder claim, or marking any corner or line of that claim, were ever placed on or within the Last Chance or Emma claims with the consent of the owners thereof, but that every attempt to place any stakes of the Stemwinder upon the Emma or Last Chance claims was forbidden and prevented by such owners, and the parties so placing said stakes were compelled to withdraw them, and that, in order to definitely establish the limit of the Stemwinder location to the northward, the said monument was erected jointly by the owners of the Emma and Last Chance and Stemwinder claims; that, in patenting the Emma lode claim, the said monument was recognized as the boundary, and the official line established thereon; that, notwithstanding the said monument and the patenting of the said Emma claim, the successors in interest of the Stemwinder claim undertook to ignore the said boundary and the monument, and, upon the making of the application for patent by the owner of the Emma location, the then owner of the Stemwinder claim filed an adverse claim in the United States land office, and commenced a suit in support thereof against said application for patent, which suit involved the question of whether the Stemwinder claim ever extended over a part of the Emma and Last Chance claims, or north of the said monument and south line of the Emma claim, as surveyed for patent; that the said suit was tried, and judgment rendered therein against the Stemwinder claim, and that it was decreed that the ground in controversy between the Emma and the Stemwinder claims was a part of the Emma claim, as located and claimed by the locators thereof on the 17th day of September, 1885; that this judgment remains unreversed, and was affirmed in the Supreme Court of Idaho (21 Pac. 1040) and by the Supreme Court of the United States (13 Sup. Ct. 1052, 37 L. Ed. 960); that the owners of the Last Chance lode claim made application for United States patent, and gave notice thereof in the usual manner, and that the claimants of the Stemwinder claim filed no adverse claim against such application for patent; that at the time of the attempted location of the Stemwinder claim, on the 17th day of September, 1885, the lode and
surface ground attempted to be located was not a part of the vacant, unappropriated public land of the United States, and that the location thereof was void as to every part thereof north of the original south line of the Emma location; that the claim attempted to be located as the Stemwinder was not the same location or lode claim that appellee now claims and seeks to recover upon in this suit, as to shape, direction, or identity; that the appellee has been guilty of laches in asserting its pretended claim, inasmuch as the appellant has openly claimed the premises sued for since 1898, and has openly mined upon and extracted ore therefrom, and been in the open and notorious possession thereof, since 1899, of which the appellee has had full knowledge. The appellant then alleges that the plane upon which the appellee is seeking to follow between its pretended end lines is laid along the strike of the ledge, and not upon its downward course or dip, and that the ore bodies claimed by the appellee in this suit are not upon the downward course of any ledge having its top or apex within the Stemwinder claim.
To this answer the appellee filed its replication, and upon the issues thus raised the cause was tried in the court below.
Allusion has already been made to the previous decision of this court in respect to the sufficiency of the bill, and of the pleas thereto interposed by the appellant. Another point again argued by the learned counsel for the appellant was also determined adversely to his contention in our former decision in this cause, namely, that the intervention of the extralateral rights of the Emma and Last Chance claims did not cut off or extinguish the right of the owner of the Stemwinder to follow its vein or lode beyond the end-line planes of the Emma and Last Chance, 58 C. C. A. 311, 121 Fed. 973. And still another point urged by appellant's counsel, to wit, that the awarding the appellee the extralateral right in question is to permit it to follow the vein more upon its strike than upon its dip, was decided against his contention at the present term, in the case of Last Chance Mining Co. et al. v. Bunker Hill & Sullivan Mining & Concentrating Co., 131 Fed. 579. Several other points, however, remain to be considered and determined.
The case shows that the Stemwinder claim was originally located in September, 1885; its location notice bearing date September 17th of that year. At the time of such location it was thought by its locator that the vein outcropping within the claim ran easterly and westerly. Accordingly its length was laid in that direction, as is indicated on the diagram. The same mistake was made by the locators of the Emma and Last Chance claims, and of other claims in the same vicinity, as appears in this and other records in this court. The Stemwinder has not been patented, and it is contended by the appellant that it does not appear from the record that that claim ever was marked or staked on the ground as claimed by the appellee. One Devine was its original locator. His testimony in respect to the marking of the boundaries of the claim is as follows:
"Q. What did you do, if anything, with reference to marking the boundaries of that claim? A. I put up three stakes on the east end; that is, I blazed them. I had a small ax, and I blazed them that day, and put up one stakemade a monument and put up one stake on the northeast corner-and the other two were blazed on the east end. On the west end I blazed two trees, and
did not put up my southwest corner stake that day. I put them all up but one that day. Q. When did you put up the last stake? A. Shortly afterwards. Q. Within how many days afterwards? A. I think the next day, or the next day but one. Q. Now, let us go to those corners, and see if you can recollect what the character of them was, and how they were marked. What was the northwest corner? A. It was a pine tree, about 12 inches through, I guess. We afterwards squared it up and cut the tree off. Q. Made a stump of it? A. Made a stump of it; yes, sir. A stake of it, proper. Q. How was that tree marked? A. It was marked, 'Northwest corner of Stemwinder claim.' Q. Did you set a stake at the west center end? A. No, sir. I marked on a stub-a big stub, probably 50 feet high; blazed it on each side. I didn't cut that off. Q. A standing tree? A. No, sir; it was a stub at the time, probably 40 to 60 feet high. Q. A dead tree? A. Yes, sir. Q. Standing in its natural position? A. Yes, sir. Q. Did you square that? A. I squared it on four sides, but I did not cut it down. Q. How did you mark it? A. I marked it, 'West center end of the Stemwinder.' Q. With regard to the southwest corner, what was the character of the marking at that point? A. Well, that day I did not put up any mark there. Q. You put it up on the next day? A. On the next day or two I put up a stake. Q. What was the size of the stake, and how high did it stand up above the ground? A. Oh, the stake was probably five inches through after it was squared up, and stood four or five feet above the top of the ground -I suppose, four and a half feet. I don't know exactly. I know I got it long enough. Q. Was it firmly planted in the ground? A. Yes, sir. Q. How was it marked? A. It was marked, 'Southwest corner of Stemwinder.' Q. What marking, if any, did you place at the southeast corner of the claim? A. At the southeast corner? Q. Yes. A. I blazed the tree and cut that off, on the southeast corner, and made a stake of it. It was a stub at the time I cut it off. Q. You squared the tree, did you? A. Yes, sir. Q. What was the size of it after it was squared? A. Oh, I suppose it was five or six inches through. Q. Five or six inches square? A. I think so; yes, sir. Q. How was it marked? A. Marked, 'Southeast corner Stemwinder claim.' I posted the notice on itthe same as all the stakes I put on the ground. Q. What marks did you make at the east center end, if any? A. The east center end was a tree about 12 or 14 inches through. Q. A live tree? A. No, sir, it was dead; and I marked that, 'East center end of the Stemwinder,' and afterwards cut the tree down. Q. Did you substitute anything for the tree afterwards? A. No, sir. There
was a stake there, yes; but then there was also the notice on the tree when I cut it down, making a stake of it, too. Q. Was there a post subtituted for that center end? A. Yes, sir. Q. What was the character of the post? A. It was a hewed post, probably five or six inches through, squared up. Q. How high did it stand above the ground? A. Four or five feet. I don't know exactly. Q. What did you place, if anything, by the northeast corner? A. At the northeast corner was a little monument of rocks, and I placed a little stake in that, the day I located the claim, and afterwards put a good stake there, probably four or five inches through. That was the northeast corner. Q. How did you mark that? A. 'Northeast corner of the Stemwinder.' Q. Did you mark the east center end stake? A. Yes, sir. Q. How did you mark that? A. Marked it, 'East center end of the Stemwinder.' Q. Wherever there were stakes placed in the ground, were they all firmly placed? A. Yes, sir. Q. I will ask you, with reference to this marking, whether or no the lines could be readily traced from this marking? A. Yes, sir; they could. Q. Where did the Stemwinder claim lie with reference to the Bunker Hill? A. It laid very nearly north of the Bunker Hill-a northerly direction. Q. How close to it? A. It laid right next to the Bunker Hill. Q. And northerly from it? A. Yes, sir; northerly."
We also extract from the examination of the surveyor who marked the boundaries of the amended location of the Stemwinder the following:
"Q. Mr. Loring, you testified yesterday that you had made an amended location of the Stemwinder for the Stemwinder Mining Company, and, I believe, testified and identified the notice which was posted, copy of which was re