Opinion of the Court.

PERRIN v. UNITED STATES.

APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS.

No. 30. Argued March 16, 17, 1898. - Decided May 31, 1898.

Camou v. United States, ante, 277, followed.

THE case is stated in the opinion.

Mr. Byron Waters and Mr. John T. Morgan for appellant.

Mr. J. H. Meredith filed a brief for same.

Mr. Special Assistant Matthew G. Reynolds for appellees. Mr. Solicitor General was on his brief.

MR. JUSTICE BREWER delivered the opinion of the court.

So far as the question of title is concerned this case is similar to the one immediately preceding, Camou v. United States, ante, 277. For reasons therein stated the decree of the Court of Private Land Claims will be reversed and the case remanded for further proceedings. It is true, as suggested in its opinion, the Court of Private Land Claims thought that there was no sufficient location of the tract in controversy, and that probably the grant was void for uncertainty in the description of the property. It may be that this conclusion was right. At the same time, in view of what has been recently said by this court in respect to boundaries, description and area, we think that justice requires that we reverse the judgment and remand the case for further proceedings. Perhaps the claimants may be able to satisfactorily identify a tract not larger than the area purchased and paid for which should equitably be recognized as the tract granted.

Reversed

Syllabus.

WALRATH v. CHAMPION MINING COMPANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS OF THE NINTH

CIRCUIT.

No. 230. Argued April 22, 1898. Decided May 31, 1898.

On the 28th of April, 1871, on a previous location made in 1857, the Providence Gold and Silver Mining Company obtained a patent in which it was recited that it was "the intent and meaning of these presents to convey" to the company "the vein or lode in its entire width for the distance of 3100 feet along the course thereof." Under that act a patent could be issued for only one vein; but the act of May 10, 1872, c. 152, gave to all locations theretofore made, as well as to all thereafter made, all veins, lodes and ledges, the top or apex of which lies inside of the surface lines. September 29, 1877, the Champion Mining Company made a location upon the Contact Vein, which overlapped the Providence location, both as to surface ground and lode. In 1884 a dispute took place, which brought about relocation of the lode line of the Champion Company; but eventually the conflicting claims resulted in this suit. Held, (1) That the extent of the rights passing under the act of 1866 was decided by this court in Mining Co. v. Tarbet, 98 U. S. 463, viz. : that "the right to follow the dip of the vein is bounded by the end lines of the claim; "

(2) That that right stops at the end line of the lode location, terminated by vertical lines drawn downward;

(3) That the original location and lode determined those end lines. The following propositions, announced in Del Monte Mining Co. v. Last Chance Mining Co., ante, 55, are affirmed with the addition that the end lines of the original veins shall be the end lines of all the veins found within the surface boundaries: "First, the location as made on the surface by the locator determines the extent of rights below the surface. Second, the end lines, as he marks them on the surface, with the single exception hereinafter noticed, 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 establish 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

Statement of the Case.

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 location."

There is no merit in the contention that by agreement, by acquiescence, and by estoppel, the line f-g on the plan has become the end line of the two claims.

It is the end lines alone which define the extralateral rights, and they must be straight lines, not broken or curved lines, and to such the right on the vein below is strictly confined.

THIS action, brought in the Superior Court of Nevada County, California, involves title to a triangular shaped section of what is known as the "Contact," "Ural” or “Back" ledge of gold-bearing ore, situated in the same county, claimed by appellant to be a portion of the Providence Mine, to which complainant has title through a patent from the United States, and by appellee, a corporation, to be a part of the New Years Extension Mine owned by it.

The relative situation of the two properties and the portion of the ledge in controversy is shown by Figure No. 1 on page 295; the disputed section being contained between the lines thereon marked "Line claimed by Providence" and "Line claimed by Champion."

The figures marked "New Years" and "New Years Extension" represent the surface of the mining properties owned by defendant, while that marked "Providence Mine" represents the surface of the patented ground of the plaintiff.

The action was brought May 24, 1892, to recover $300,000 damages for ore extracted from the ledge and carried away by the defendant, and for an injunction against further trespasses thereon.

Upon motion of appellee the action was removed to the United States Circuit Court, as involving a Federal question, where the complainant recast his pleadings so as to separate the action into a bill in equity, upon which the action is now proceeding, and an action at law for the damages alleged.

The suit in equity was tried in the Circuit Court and decided mainly in favor of the appellee.

From this decree the appellant appealed to the Court of

Statement of the Case.

Appeals for the Ninth Circuit, where it was modified, and, as modified, affirmed.

The appellant now brings the case to this court upon writ of error from the Court of Appeals.

The appellant's title is deraigned as follows: In 1857, under the miners' rule and customs then in force, thirty-one locators located thirty-one hundred feet of the Providence or Granite lode. By mesne conveyances the title to this location became vested in the Providence Gold and Silver Mining Company, and on April 28, 1871, that company obtained a patent to thirty-one hundred feet of the lode and for surface ground as described in the patent.

The title thus granted to the Providence Gold and Silver Mining Company was, before the commencement of this suit, vested in the appellant.

The ledge, as granted by the patent, extends thirty feet north of the north surface line of the location and some six hundred and eighty feet south of the south surface line.

The patent conveyed only the Providence ledge and the surface ground. All other ledges contained within the surface lines were expressly reserved.

It is also contended by appellants that, by the act of Congress of May 10, 1872, exclusive possession of all the surface included within the lines of the location was granted to the owners of the Providence, together with all other lodes or ledges having their tops or apexes within such surface lines. This grant, of course, included the Contact vein, subsequently discovered within said boundaries, and now constituting the bone of contention in this action.

The Contact vein is shown in the figure, and crosses the surface line f-g of the Providence location.

On September 29, 1877, the appellee and defendant, the Champion Mining Company, made a location upon the Contact vein called the New Years Extension Mine. This location overlapped, both as to surface ground and lode, upon the Providence location; that is, the lode line and surface lines of the said New Years Extension extended to the south of the boundary line f-g of the Providence location.