31 Colo. 131 | Colo. | 1903
delivered the opinion of the court.
This is an action by the owner of the Victor Consolidated, against the owner of the Triumph, mining claim, to recover for the value of ores taken from a vein within the limits of the Triumph lode, of which both parties assert ownership. The defendants say the ores belong to them because the vein from which they were extracted is within the outer boundaries of their location, while plaintiff’s ownership is based upon an apex right under section 2322, Revised Statutes of the United States. Only one important question is raised by. the appeal of the apex claimant, who failed below, and this arises out of the following instruction given to the jury at the instance of the defendants:
“If you believe, from the evidence in this case, that the discovery lode of the Victor Consolidated claim passes out of either side line of that claim before reaching the northerly end line of said claim, as originally located, then the rights of the plaintiff to any ore outside the surface boundaries of said claim in any vein having its apex within such claim are limited to two parallel bounding planes, one drawn through the southerly end line of said Victor Consolidated claim as originally located, and the other pass*133 ing through the said claim parallel to said southerly eud line at the point where such discovery vein may have been shown to depart from its side lines, if such departure has been shown. ” •
Both parties agree that by it the' jury were, in effect, told that if the discovery vein of a lode mining claim on its strike departs through a side line, no extra lateral rights attach to any other vein apexing within the claim beyond the point of such departure.
The question thus presented seems not to have been expressly determined by the supreme court of the United States or any of the inferior federal or state courts. In the absence of any decision at all construing the act of congress, we would not have much, if any, doubt as to its meaning. Its language is broad enough to sustain appellant’s contention that the owner of a lode mining claim has extra lateral rights in and to all veins the top or apex of which lies within its surface lines extending downward vertically, to the extent, at least, of the length of the apex within such boundaries, even though the discovery vein on its strike does not cross both end lines. For the statute provides that owners of such claims: “Shall have 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.”
The only' express limitation to this comprehensive grant is found in the proviso of the same section, which declares that the right of possession to such outside parts of veins “shall be confined to such portions thereof as lie between vertical planes drawn
There does not seem to be anything ambiguous or uncertain in this language, and, indeed, appellees ’ counsel are disposed to concede that, taken literally, it affords some warrant, at least, for appellant’s position; but they say that by numerous decisions construing the statute the courts have enunciated several propositions that somewhat restrict its apparent scope. Appellees ’ position cannot be better presented than in the language of their learned counsel, and a statement of their propositions serves to bring out sharply the respective contentions so ably argued on both sides. The following map will also aid in an understanding of the controversy.
The three propositions of law said to be established by the decisions, of which the fourth one stated
1. There can be bnt one set of end lines or bounding planes for a single location, and these limit the extra lateral right upon all lodes or veins apexing therein.
2. These end lines or bounding planes are determined by the strike of the discovery vein with reference to the located side and end lines of the claim.
3. Where the apex of the discovery vein passes through one end and one side line the extra lateral right upon such vein will be bounded by a vertical plane drawn downward through the'crossed end line and another vertical plane parallel thereto, but operating at the point where the apex leaves the side line.
The fourth proposition they thus express: “The necessary logical sequence of these propositions is, that where the discovery vein on its strike departs through a, side line, no extra lateral rights attach to any other vein apexing within the claim beyond the point of such departure. ”
Since appellant concedes the first three propositions, there is no necessity for discussing them or citing the authorities upon which they rest. But the alleged deduction therefrom appellant vigorously combats, and that presents the question for our decision. We first observe that that part of appellees argument to the effect that where a location is laid across, instead of along, the discovery vein, the end lines become the side lines of the location, and the side lines become the end lines, is not pertinent to anything now before us, and in so far as the deduction depends on such proposition, "it is without support. There is no dispute between counsel as to this doctrine of shifting of side and end lines, in the case supposed, but it is wholly inapplicable here, for the Victor Consolidated location is laid along the course
. But conceding the correctness of all three propositions, as to which the counsel upon both sides are in accord, we cannot agree with learned counsel for appellees in their ingenious argument that the fourth proposition, which they must establish in order to sustain the instruction complained of, is a logical sequence of either, or all, of the others. It is quite true that there can be but one set of end lines for one location, and these must perform that function not only for the discovery vein but for all other veins apexing within the surface lines.—Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U. S. 55; Walrath v. Champion Mining Co., 171 U. S. 293, 297, 308.
This, however, does not mean that all such veins have exactly the same extra lateral rights, nor can it be said that only so much of a secondary vein as apexes within that part of the claim where the apex of the discovery vein is found has such rights. In the Walrath case, supra, which was twice before the circuit court of appeal's (63 Fed. 552; 72 Fed. 978) and once before the supreme court of the United States, there are some expressions in the opinions of the circuit court of appeals from which, taken alone, it might be inferred that under facts like those here present, the owner of a claim would have extra lateral rights in the discovery vein even beyond the point where, on its strike, it leaves the side line, and that the bounding planes, within which such rights are to be exercised, must be drawn through the two end
The end lines constitute a harrier beyond which a locator cannot follow a vein on its strike, whether it be a discovery or secondary vein, and they also limit the bounding planes within which his extra lateral rights are to be exercised in following such vein on its dip. In exercising such extra lateral rights the locator cannot, in any case, pursue the vein on its dip beyond the bounding planes drawn through the end lines, but, as we have said, appellant is content to be restricted in the exercise of such rights in the secondary vein to planes drawn parallel to the end lines and passing, the one through the claim at the point where the vein enters, and the other where it departs from, the surface line of the location. The extent of the right depends upon the length of the apex, and the extra lateral rights are' measured not necessarily by the end lines — and only so when the vein passes across both end lines — but by bounding planes drawn parallel to the end lines passing through the claim at the points where it enters into, and departs from, the same.
It would seem, therefore, necessarily to follow that the extra lateral right depends, inter alia, upon the extent of the apex within the surface lines, and while the end lines of the claim as fixed by the location are the end lines of all veins apexing within its exterior boundaries, the planes which bound such rights of different veins may he as different as the extent of their respective apices, though all such planes must be drawn vertically downwards parallel with the end lines. It makes no difference in what portion of the patented claim the apex is. Its extra
See, also: Fitzgerald v. Clark, 17 Mont. 100, affirmed by the United States supreme court, 171 U. S. 92; Tyler M. Co. v. Last Chance M. Co., 71 Fed. 848; 2 Lindley on Mines, § 591 et seq.
The language of Judge Hallett, when Del Monte M. & M. Co. v. N. Y. & L. C. M. Co., 66 Fed. 212, was before him, is pertinent to the argument of appellees that there can be but one set of end lines or bounding planes for all the veins covered by a single location, and that they must be the same for each. He thus disposes of it:
“It is said that we cannot make a new end line at the point of divergence or elsewhere, because the court cannot make a new location, or in any way change that made by the parties. Iron Silver Min. Co. v. Elgin Min. & Smelting Co., 118 U. S. 196, 6 Sup. Ct. 1177. This, however, is not necessary. We*140 can keep within the end lines fixed by the locator in respect to any extra lateral right that may be recognized without drawing any line; and, if there be magic in the word dine,’ it will be better not to use it.”
The opinion of Mr. Justice Brewer, when the same case came before the federal supreme court (171 U. S. 55), is very instructive, and, as we read it, is authority for the conclusion which we have reached in the case in hand. In speaking of extra lateral rights of a vein entering a claim through an end line and passing out under a side line, he said: “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 the vertical side lines.” And referring to the proviso .of section 2322, which we have herein-above quoted, he proceeds': “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. * * * 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. ’ ’
This reasoning applies as much to a secondary, as to the discovery, vein. It is - a vein that apexes within the surface limits, and there is, to say the least, no more reason in denying to it extra lateral rights, because it does not apex within that particular part of the claim where the apex of the discovery vein is, than there is for denying to any vein extra lateral rights unless in its course it reaches the
Our conclusion is that for all veins, both discovery and secondary, of a. patented claim, the owner has extra lateral rights, at least for so much thereof as apex within the surface' lines; that such rights as to secondary veins are not confined to such veins as apex within the same segment of the claim in which the apex of' the discovery vein exists; and while the end lines of the location, as fixed and described in the patent, are the end lines of all veins apexing within the surface boundaries, and may constitute the bounding planes for such extra lateral rights, and in no case can the locator pursue the vein on its dip outside the surface lines beyond such planes continued in their own direction until they intersect such veins, yet these bounding planes, which in all cases must be drawn parallel to the end lines, need not be coincident. The giving of this instruction was prejudicial error. The judgment is, therefore, reversed and the cause remanded.
Reversed.