the course of said railways may intersect,
touch, or cross. Provided the said company
shall preserve any street, highway, turn-
pike, or canal which its said railways may so
pass upon, along, or intersect, touch, or cross
so as not to impair its usefulness to the pub-
lic unnecessarily;' and,

and ferries to acquire property by expro- such gauge and construction and upon such priation; to acquire, construct, maintain, and a course or route as may be deemed by a mause suitable wharves, piers, warehouses, jority of the directors of said company most yards, steamboats, harbors, depots, stations, expedient, and to and between the points and 314) and other works and appurtenances connect-places mentioned and implied in said act, and ed with and incidental to said railway and its is hereby authorized to establish and mainconnections, and to run and manage the same tain in the city of New Orleans proper freight as the directors of the said company may and passenger depots,' and to construct deem to be most expedient and to the wel-wharves, piers, warehouses, yards, depots, and fare of said corporation; to construct and stations; and to 'construct and maintain its maintain its said railroads, or any part of the said railroads or any part of the same, and to same, and to have the right of way therefor have the right of way therefor across and across or along or upon any waters, water along and upon any street, highway, turncourses, river, lake, bay, inlet, street, high-pike, or canal in the state of Louisiana which way, turnpike, or canal within the state of Louisiana which the course of said railways may intersect, touch, or cross, provided that said company shall preserve any water course, street, highway, turnpike, or canal which its railways may so pass upon, along, or intersect, touch, or cross, so as not to impair its usefulness to the public unnecessarily; to obtain by grant or otherwise from any parish, city, or village within the state any rights, privileges, or franchises that any of said parishes, cities, or villages, may choose to grant "Whereas the said New Orleans Pacific in reference to the construction, maintenance, Railway Company is desirous of constructing management, and use of the railroads of said its line of road on the east bank of the Misscompany, its depots, cars, locomotives, and its issippi, from a crossing near Baton Rouge to business within the limits of such or any of some point in the city of New Orleans, besaid parishes, cities, and villages; to purchase tween the new canal and Melpomene street, or lease from any railroad company or corpo- and to establish its terminus at such point, ration, at any authorized sale, any railroad on condition that the city shall grant to the and the charter, franchises, property, and ap-company the right to extend its tracks from purtenances thereof, and to maintain and use such terminus into and through Claiborne the same as a part of the property of said street to Canal street, for passenger purposes; company." and *shall also grant the right to extend its[316]

"Whereas it is for the interest of the city of New Orleans that the southern terminus of said railroad shall be fixed and established within the city limits; and,

On February 19, 1876, the general assem-tracks from such terminus north of Claiborne bly of the state of Louisiana passed act No. street by the most convenient and practicable 14 of 1876, to conûrin said charter of the route through the public streets to the river Railway Company, with amendments there-front for freight purposes, with the right to to, which among other things declared "that operate the same by steam or otherwise, as is the term of existence of the said New Orleans now done on the Belt railroad on St. Joseph Pacific Railway Company shall be so extend-street, and on the levees by other railroad ed that said company by its name and under companies in the city of New Orleans. the aforesaid mentioned articles of incorporation shall have perpetual succession, and that Shreveport in Louisiana shall be the northwestern terminus of said New Orleans Paeific Railway Company, and that the main line shall be completed to Shreveport before any branches shall be constructed,"

"Now, therefore, for the purpose of permanently securing to the city of New Orleans the advantages that will result from locating and maintaining the terminus of the said New Orleans Pacific Railway within the city limits:

"Sec. 1. Be it ordained by the council of The city council of New Orleans on No- the city of New Orleans, That the New Orvember 9, 1880, adopted ordinance No. 6695, leans Pacific Railway Company be, and it is entitled "An ordinance granting to the New hereby authorized and empowered to locate Orleans Pacific Railway Company or its as- construct, and maintain a railroad, with all [315]signs, the right to establish its terminus with- necessary tracks, switches, turnouts, sidings, in its city limits, and to construct, maintain, and structures of every kind convenient and and operate a railroad to and from such ter- useful and appurtenant to said railroad, upon minus with one extension for passenger pur- lines and levels to be furnished by the city poses and another one for freight purposes in-surveyor, to and from such point as shall be to and through certain streets and places in the city of New Orleans."

This ordinance read:

selected by such company as its terminus, between the new canal, Claiborne canal, and Carrollton avenue, with the right to establish "Whereas, the New Orleans Pacific Rail and maintain at such point necessary depots, way Company, a corporation organized and shops, yards, warehouse, and other structexisting under Louisiana state laws, is vestedures convenient and useful for the transacwith authority under an act approved Feb- tion of its business, and to operate the same ruary 19, 1876, as follows, to wit: "To locate, by steam or otherwise for the transportation construct, lease, own, and use a railroad, with of freight and passengers within the city limone or more tracks and suitable turnouts, ofits.

section, which, in express words, provides that the privileges of extension granted were dependent upon the establishment of the terminus at the point indicated, and would cease to exist if, after the establishment of the terminus, the railroad company should abandon it. The language of the 4th section is as follows:

The original ordinance 6695 contemplated face of this ordinance it is apparent that the that the proposed railroad would be built rights thus given the railroad to extend upon the west bank of the Mississippi river, along Claiborne to Canal for passenger purNew Orleans being upon the east bank, and poses, and along a street to be designated to *hat the road would cross that river to the the river for freight purposes, were mere ac[335] ast bank some hundred *or more miles above cessories to the obligation imposed by the ordiNew Orleans, coming to that city on the east nance upon the railroad to build its depots, bank, and entering in the rear of the city, structures, warehouses, etc., at the point inthat is, in that portion of the city lying a con- dicated, and that the incidental rights of exsiderable distance back from the river. The tension from the terminus to the other points purpose of the ordinance was clearly indicated could have no existence if no terminus was by its title, which declared that it was in- established from which the extensions could tended to grant "to the New Orleans Pacific be made. Reading the provisions of the Railway Company or its assigns the right to ordinance with the preamble and the establish its terminus within the city limits title, it cannot reasonably be controand to construct, maintain, and operate a verted that the rights of extension 836 railroad to and from such a terminus, with were granted upon the suspensive conone extension for passenger purposes and an-dition that the railroad should terminate at other for freight purposes, into and through the point indicated, and there build the shops certain streets and places in the city of New and depots from which the right to extend its Orleans." The preamble to the ordinance re-tracks was conceded. And this is, if possible, cited the desire of the railroad to enter the made more certain by considering the 4th city at about a certain point, and to construct its terminus between the new Canal and Melpomene street, providing the city would grant the right to extend its tracks “from such terminus into and through Claiborne street to Canal street for passenger purposes; and shall also grant the right to extend its tracks from such terminus north of Claiborne Canal by "That the right of way, franchises, and the most convenient and practicable route privileges herein granted to the New Orleans through the public streets to the river front | Pacific Railway Company are granted only for freight purposes." The 1st section of the on condition and in consideration that the ordinance grants the railroad the right to en- said grantees shall permanently establish the ter the city to the point stated in the pream-terminus of said road within the city limits, ble, and to construct and maintain at the ter- and maintain said terminus during the exminus necessary depots, shops, yards, ware- istence of the charter of said company, for houses, and other structures, convenient and which period said right of way and privileges useful for the transaction of its business. The shall last; and should the said company at peint at which the right to construct this ter- any time hereafter abandon its said road on minus was given by the ordinance is embraced the east side of the Mississippi river and its within the triangular space in the rear of the terminus within the city limits, then this city as marked on the sketch above given. grant shall cease and terminate, and be withThe 2d section of the ordinance empowered out force or effect from the date of such abanthe company to "locate, construct and main- donment; .. and it is still made a contain an extension of its railroad with all neces-dition of this grant that said railway comsary tracks, switches, turnouts, sidings and pany shall complete its road from the structures of every kind, convenient and use- crossing of the Mississippi river, at or near ful and appurtenant to said railroad, Baton Rouge, to its terminus in this city 338 into and through Claiborne street to Canal within two years from the promulgation of street, with the right to construct a passenger this ordinance.” depot at or near the intersection of Claiborne The words "the terminus of said road" street with Canal street." A glance at the and said "terminus" used in the 4th section sketch will make clear the fact that Claiborne clearly refer to the terminus fixed by the ordistreet thus designated was in the rear of the nance, and where the railroad agreed to estab city, quite near the point where the railroad lish its shops, roundhouses, etc. It fol had contracted to establish its terminus, de- lows, then, that the ordinance granted pots and structures, and that the route thus a right to the railroad company to mapped out in the very nature of things and enter the city to reach a designated in the language of the ordinance was a mere point, and imposed upon the company right granted to the railroad to extend its the obligation to erect its depots, shops, waretracks from the terminus, which the railroad houses, etc., at that point; that in considerwas under the obligation to build, to andation of this obligation assumed by the comalong the designated route to the point indi-pany, to be performed within two years, a cated on Claiborne and Canal. The 3d sec- right was given to it to extend from the depot tion of the ordinance obligated the city to des-so designated a passenger track to a given ignate a street from the point where the ter-point, and a freight track to another point; [337 minus was selected, and where the company that the two rights of extension were the was to establish itself, through which it could mere resultants of the principal obligation build an extension for the purposes of its imposed upon the company, in consideration freight business to the river front. On the of which the rights to the extensions were


In the year 1884 the complainant and his co-owners objected to the overlap, and demanded of the Champion Mining Company that it abandon all claims to the surface and lode to the south of the Providence boundary line, above described. Thereupon, in the month of November, 1884, John Vincent, the superintendent of the defendant, the Champion Mining Company, under the authority and by the direction of the said company, relocated the New Years Extension Mine by a notice of relocation, in which the fact of the overlap under the original location was particularly recited, and the lines were readjusted so as to avoid the overlap and to conform to said line f-g of the Providence Mine, as shown on figure 1.

crosscut was run back to the Contact vein
on the 600 foot level, and another on the
1,250 foot level, and much of the ground now
in controversy was thereby prospected and
opened up by complainant and his co-owners.
(See Fig. 1.)

The claims of the respective parties will be
readily understood by reference to Figure 1,
which shows the relative position of all the
mining properties belonging to both, with the
lines claimed by them.

The portion of the Contact vein in dispute is that upon the dip of the ledge lying between the line marked "Line claimed by Providence" and the line marked "Line claimed by Champion."

The apex of the Contact vein is represented by the dotted line -', and shows the vein as far as exposed in both the Champion and Providence ground. South of x. the course of the vein in the Providence

The line f-g is the same line as that desig nated A-B by some of the witnesses.

In the notice of relocation the lode line was particularly described as follows: "The lode line of this claim as originally located, nd which I hereby relocate, is described as follows: Commencing at a point on the north-ground is unknown. erly bank of Deer creek, which point is 60 feet S., 11 degrees 45 minutes east of the month of the New Years tunnel and running thence along the line of the lode towards the N. E. corner of the Providence mill, about S. 46 degrees 15 minutes east, 200 feet, more or less, to a point and stake on the northerly line of the Providence Mine, patented designated as Mineral Lot No. 40 for the south end of said lode line."

Upon the trial the circuit court held that there could be but one end line for each end of the Providence location, and that the lines g-h and a-p constituted such end lines; that such lines constituted the end[300] lines of not only the originally discovered Providence lode, but also of every other vein that might be discovered within the surface fines of the location. But, notwithstanding this holding, in entering the decree the line

Contact vein, but for its length only, and then that from "g" the line g-h, and that line extended indefinitely eastwardly, constituted another end line for the same end of the lode, and constituted the line through which the plane determinative of all extralateral rights in the vein must be drawn.

It also contained the following statement: "And whereas, part of this claim, as originally described and as hereby relocated, con-f-g was also established as an end line of the flicts with the rights granted by letters patent of said Providence Mine, said lot No. 40, now, therefore, so much of this claim, both for lode and surface ground, as originally conflicted or now conflicts with any portion of the surface or lode claims or rights granted by said patent, is and are hereby abandoned, which portion of this claim so abandoned is described as follows: All that portion of the above-described New Years Extension Claim for surface and lode which lies south of the [299]northern boundary line of said *Providence Mine, which runs north 43 degrees 10 minutes east, across the southeastern corner of this claim."

The New Years Extension as relocated is conterminous with the Providence Mine on the northerly boundary line designated as the line f-g, running south 43 degrees west. (Fig. 1.)

That line is the only boundary between the two properties, and the only boundary of the Providence location which is crossed by the Contact ledge.

The first workings of the appellee involved no conflict with appellant. The shaft ran parallel with the Providence line, and none of the levels crossed that line until about three months before this suit was begun, when the 1,000-foot level was driven across it into the ground in dispute. Subsequently the eighth and ninth levels were

driven across.

From this decree the appellant here was allowed an appeal to the circuit court of appeals.

The latter court established the line g-h-h1 as the sole line of the Contact vein, and reversed the decree of the circuit court in so far as it fixed the line f-g as an end line.

As a result of this decree the complainant was not only shut out of all extralateral rights in the Contact vein north of the line g-h-h', but also of that portion of the vein lying vertically beneath the surface lines of the Providence which extend north of that line, and which are marked upon the figures as constituting the parallelogram h-i-k-h', which was awarded to the Champion. figure 1, showing the end line fixed by the circuit court, and that line as subsequently fixed by the court of appeals with the latter line extended in its own direction both eastwardly and westerly.)


From the judgment of the circuit court of appeals the appellant has appealed to this court.

There are nine assignments of error. The The work done by the Providence was car- first eight attack so much of the decree as ried on through a shaft sunk on the Provi-establishes the line g-h as an end line, for dence or Granite ledge, from which shaft a the purpose of determining the extralateral

right, or fails to establish the line f-g, and | It lay across the lode, not with it, and the that line produced indefinitely in the direc- company contended, notwithstanding that, tion of g' as such end line. The last two as it had a right to the lode for the length of sail so much of the decree as awards to ap- the location. In other words, the contention pellee the right to pursue the vein on its was that it was the lode which was granted, downward course underneath the parallelo- and that the surface ground was a mere ingram h-i-k-h1. cident for the convenient working of the lode. The contention was presented and denied by the instructions which were given and refused by the lower court. That court instructed the jury that if they found Tarbet "was in possession of the claim, describing it, holding the same in accordance with the mining laws and the customs of the miners of the

Messrs. R. R. Bigelow, Daniel Titus, and James F. Smith for appellant.

Messrs. Curtis H. Lindley and Lindley & Eickhoff for appellee.

Mr. Justice McKenna delivered the opin-mining district, and that the apex and course ion of the court:

There are two questions presented by the assignment of errors:

(1) What are the extralateral rights of the appellant on the Contact vein?

of the vein in dispute is within such surface, then, as against one subsequently entering, he is deemed to be possessed of the land within his boundaries to any depth, and also of the vein in the surface to any depth on its (2) Is appellant entitled to that portion dip, though the vein in its dip downward of the Contact vein within the Providence passes the side line of the surface boundary boundaries which lies north of the north end and extends beneath other and adjoining line fixed by the court, and which is de-lands, and a trespass upon such part of the scribed upon figure 1 as the parallelogram vein on its dip, though beyond the side surbounded by the lines marked h-i-k-h? face line, is unlawful to the same extent as a (1) The appellant contends that the pat-trespass on the vein inside of the surface ent of the Providence ledge was conclusive boundary. This possession of the vein outevidence of his title to 3,100 feet in length of that vein. If true, this carried the northern end of the ledge 30 feet beyond the line fixed by either the circuit court or the circuit court of appeals. It was truly said at bar: "If it is not the end line of the Providence location, then certainly there is no reason for holding it to be the end line of the Contact vein."

side of the surface line, on its dip, is limited in two ways-by the length of the course of the vein within the surface; and by an extension of the end lines of the surface claim vertically, and in their own direction, so as to intersect the vein on its dip; and the right of a possessor to recover for trespass on the vein is subject to only these restrictions."

Again: "The defendant (plaintiff in error) The language of the patent is: "It being has not shown any title or color of title to the intent and meaning of these presents to any part of the vein, except so much of its convey unto the Providence Gold & Silver length on the course as lies within the FlagMining Company, and to their successors staff *surface, and the dip of the vein for that[303] and assigns, the said vein or lode in its en-length; and it has shown no title or color of tire width for the distance of thirty-one title to any of the surface of the South Star hundred (3,100) feet along the course there- and Titus mining claim, except to so much of." of No. 3 as lies within the patented surface of the Flagstaff mining claim.”

And the following instructions propounded by the owner of the Flagstaff:

"By the act of Congress of July 26, 1866, under which all these locations are claimed to have been made, it was the vein or lode of mineral that was 'ocated and claimed; the lode was the principal thing, and the surface area was a mere incident for the con

The patent was issued under the act of 1866, and it is necessary, therefore, to some extent to consider that act. By it, the appellant urges, the principal thing patented was the lode, and that the northern limit of that, and hence of his rights on that, was 30 feet north of the line fixed by the circuit court of appeals; and hence it is further contended that as the northern and southern surface lines (g-h and a-p) did not deter-venient working of the lode; the patent mine or limit his right to the lode under the act of 1866-in other words, did not become end lines-they do not become end lines upon the Contact ledge ('-") acquired under the act of 1872, but that the surface line [302]which crosses the strike of that ledge must be held to be the end line, and the line which fixes the rights of the parties. This line is f-g. Fig. 1, and, if appellant is correct, determines the controversy in his favor.

The extent of the right passing under the act of 1866 has been decided by this court.

In Flagstaff Silver Mining Co. v. Tarbet, 98 U.S. 463 [25: 253], known as the Flagstaff Case, the superficial area of the Flagstaff Mine was 100 feet wide by 2,600 feet long.

granted the lode, as such, irrespective of the
surface area, which an applicant was not
bound to claim; it was his convenience for
working the lode that controlled his location
of his surface area; and the patentee under
that act takes a fee-simple title to the lode,
to the full extent located and under
said act."

Commenting on the instructions, Mr.
Justice Bradley, speaking for the court, said:

"These instructions and refusals to instruct
indicate the general position taken by the
court below, namely, that a mining clain
secures only so much of a lode or vein as it
covers along the course of the apex of the
vein on or near the surface, no matter how

far the location may extend in another direc-|S. 222 [38:419]. The locations passed upon
in these cases were made under the act of 1872,
but we have seen that the intent of that act[305]
and the act of 1866, "as it respects end lines
and side lines," was the same.

And after stating that the act of 1872 was more explicit than that of 1866, but the intent of both undoubtedly the same, as it respects lines and side lines, and the right to follow the dip outside of the latter, he proceeded as follows:

But appellant urges that "those cases are not in point here." We think that they are. The patent in the Flagstaff Case appears to "We think that the intent of both statutes have been the same as here, and besides, whatis, that mining locations on lodes or veins ever the patent here it must be confined to the shall be made thereon lengthwise, in the gen-rights given by the statute which authorizes eral direction of such veins or lodes on the it. surface of the earth where they are discover- In the Flagstaff Case the lode was claimed, able; and that the end lines are to cross the and hence the right to follow it beyond the lode and extend perpendicularly downwards, surface boundaries of the location was and to be continued in their own direction claimed. Here the lode is claimed and the either way horizontally; and that the right right to follow it outside of the surface to follow the dip outside of the said lines is boundaries, that is, beyond the line f-g to the based on the hypothesis that the direction of point '. In that case the right contended [304]* these lines corresponds substantially with for was denied on the principle applicable to the course of the lode or vein at its apex on end and side lines. In this case the or near the surface. It was not the intent of right contended for must be denied by the apthe law to allow a person to make his loca-plication of the same principle. tion crosswise of a vein so that the side lines shall cross it, and thereby give him the right to follow the strike of the vein outside of his said lines. That would subvert the whole system sought to be established by the law. If he does locate his claim in that way his rights must be subordinated to the rights of those who have properly located on the lode. Their right to follow the dip outside of their said lines cannot be interfered with by him. His right to the lode only extends to so much of the lode as his claim covers. If he has located crosswise of the lode, and his claim is only one hundred feet wide, that one hundred feet is all he has a right to. This we consider to be the law as to locations on lodes or veins.

"The location of the plaintiff in error is thus laid across the Titus lode, that is to say, across the course of its apex at or near the surface; and the side lines of the location are really the end lines of the claim, considering the direction or course of the lode at the surface.

But, appellant asks, admitting for the argument's sake that it (the line g-h) does constitute an end line of the location within the meaning of the law of May 10, 1872, does it constitute the end line of the Contact vein? And in answering the question he says: "The end line of a lode is the boundary line which crosses it regardless of whether it was originally intended as an end line or side line. Four times has this principle been sustained by this court." He then cites the cases we have cited and claims that they "are of course conclusive of this controversy if they are in point."

Under the law of 1866 a patent could be issued for only one vein. 14 Stat. at L. 251. The act of 1872 gave to all locations theretofore made, as well as to those thereafter made, all veins, lodes, and ledges the top or apex of which lie inside of the surface lines. Section 3 of the act, which is also § 2322 of the Revised Statutes, is as follows:

"The locators of all mining locations heretofore made, or which shall hereafter be "As the law stands, we think the right to made, on any mineral vein, lode, or ledge, follow the dip of the vein is bounded by the situated on the public domain, their heirs end lines of the claim, properly so called; and assigns, where no adverse claim exists which lines are those which are crosswise of on the tenth day of May, eighteen hundred the general course of the vein on the surface. and seventy-two, so long as they comply The Spanish mining law confined the owner with the laws of the United States, and with of a mine to perpendicular lines on every state, territorial, *and local regulations not[300] side, but gave him greater or less width ac-in conflict with the laws of the United States cording to the dip of the vein. See Rockwell, governing their possessory title, shall have pp. 56-58 and pp. 274, 275. But our laws the exclusive right of possession and enjoy. have attempted to establish a rule by which ment of all the surface included within the each claim shall be so many feet of the vein, lines of their locations, and of all veins, lengthwise of its course, to any depth below lodes, and ledges throughout their entire the surface, although laterally its inclination shall carry it ever so far from a perpendicular. This rule the court below strove to carry out, and all its rulings seem to have been in accordance with it."

This law was followed and applied in Argentine Mining Company v. Terrible Mining Company, 122 U. S. 478 [30: 1140]; and in Iron Silver Mining Company v. Elgin Min. & S. Co. 118 U. S. 196 [30: 98]; King v. Amy & Silversmith Consol. Min. Co. 152 U.

depth, the top or apex of which lies inside of
such surface lines extended downward verti-
cally, 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 loca-
tions. But their right of possession to such
outside parts of such veins or ledges shall be
confined to such portions thereof as lie be-
tween vertical planes drawn downward, as
above described, through the end lines of

« ForrigeFortsett »