165 P. 909 | Mont. | 1917
a Judge of the First Judicial District, sitting in place of the Chief Justice, delivered the opinion of the court.
All the questions raised by the assignments of error are resolved in favor of the respondents, except one, and that is: Is there any evidence in the record showing or tending to show that the vein from which the ore was taken has its apex within the Ripple lode? In view of the admitted fact that the ore extracted came from beneath the surface of the Tom Hendricks and Sixteen to One claims, respondents concede that the burden is upon them to establish their right to go within the boundaries of said claims and extract ore. Have the plaintiffs and respondents discharged this burden resting upon them? Have they established by competent or any evidence the existence, within the lines of their claim, of the apex of the vein or of that portion of the vein from which the defendants extracted the ore sued
John "W. Wade testified that he had surveyed the Ripple lode and the tunnels, shafts and upraises made by plaintiffs in the working and development of that claim. That Exhibit “C” for plaintiffs was a map of the Ripple lode, showing these workings, drawn to scale, and also included the Sixteen to One and a portion of the Tom Hendricks claims; that the Ripple vein has a north and south course and dips east into the mountain; that in a little tunnel about twenty feet long, near corner No. 4 of the Ripple lode, and within that claim, there is a well-defined vein about eighteen inches or two feet wide; that this vein carries ore, has a dip to the east of about twenty feet in a hundred, and, in the opinion of the witness, is the apex of the Ripple vein and the apex of the vein from which the ore wag taken beneath the surface of the Sixteen to One and Tom Hendricks lodes; that upon Exhibit “C” the witness has drawn a red line marked “Apex as Developed by Surface Openings,” to indicate the cropping or upper edge of the apex of the Ripple vein; that the dotted line at the south end of the claim is an extension of the south end line, marked “3” and “4,” in the same direction; that the lines in red, marked “Big Snowy Tunnel,” indicate the workings of the defendants beneath the surface of the Sixteen to One and Tom Hendricks claims. The witness concludes that the vein in the little tunnel near corner No. 4 is the apex of the Ripple vein and the same vein from which the ore in dispute was taken, because it has about the same dip and the same character of ore as has the vein disclosed in the Big Snowy Tunnel; because the vein in the little tunnel is on a line with the upraises from the vein to the surface farther north in the Ripple claim; for that the cross-cuts on the surface, and made by the Joki tunnel for a distance of nearly two hundred feet, and by the Tom Hendricks tunnel, run by the defendants, show that there is no other vein than the Ripple vein from which the disputed ore could come; that the Ripple vein always dips into the mountain, — that is, to the east; that the veins below and to
On cross-examination the witness Wade testified in substance as follows: That the Weidell Tunnel is about 160 feet above the Westgard Tunnel; that at the point “C-D” there is no upraise from the Westgard Tunnel to the Weidell Tunnel; that the top of the Linquist upraise is 141 feet above the Westgard Tunnel, figured vertically; that at the point marked “E-F Upraise to Surface” the vein is vertical between the Lower Tunnel and the Westgard Tunnel, and between the Westgard Tunnel and the surface there is a dip of fifteen feet, or twenty feet in a distance of eighty feet, and below it is nearly vertical; that at the Weidell upraise it is 161 feet from the Westgard Tunnel up to the Weidell Tunnel, and from the Lower Tunnel up to the Westgard Tunnel it is 253 feet; perpendicularly it is about thirty feet shorter, the dip being about ten feet in a hundred;
On further cross-examination, the witness Wade testified that at the point “H,” about 210 feet north from corner No. 4, the pitch from the Westgard Tunnel to the Joki Tunnel is eight feet in a hundred; that the pitch from the Joki Tunnel to the theoretical apex is about sixty feet in a hundred; that the witness wishes the jury to understand that at the point “H” he has no idea or conception or belief that the apex of the vein at that point would reach the apex indicated by the red line; that to what extent the actual apex will leave the theoretical apex line between the Weidell upraise and the end line of the claim cannot be told; that the wave of the lead as indicated below and particularly as indicated at the point beyond the line of the Ripple ground, might do anything and still reach what is the apex right here in the little tunnel; that it is all theoretical except from “this point to this point.” “Q. When you say ‘this point,’ what do you mean? A. I mean the point over the Weidell upraise. It is all conjecture as to the actual position beyond the development in the lower tunnel. Q. Does the vein in the little tunnel dip to the point marked ‘3’ at the southerly end? A. No. It dips to the east. It is not my contention, and not that of any of our witnesses, that the little vein has the same dip of the other one. It is all conjecture as to the actual position beyond the development in the lower tunnel, or that the other one maintains its dip until it reaches there. I am sure it will not. After it reaches this point it will rise a short distance and then will strain up and fall back as it always does. Q. Now, Mr. Wade, it being 375 (387) feet from the Weidell upraise — your last observation and this little tunnel — and
Other witnesses called by plaintiffs gave support to the testimony of Mr. Wade upon the question here considered. Gus Weidell, a witness for plaintiffs, testified on his direct examination that at the point in the Big Snowy Tunnel, referred to by both Wade and Leininger as a place where the vein had its greatest dip, there did not seem to be any walls; that there were no solid walls. Charles W. Helmick testified that there was a vein definitely disclosed on the north side of the little tunnel near corner No. 4; that the ground at that point was pretty badly shattered; that there was a more or less defined wall on the east side; that the vein was fifteen or twenty inches wide, with an eastern dip.
A summary of plaintiffs’ evidence discloses that, in the little tunnel near corner No. 4, the ground is pretty badly shattered; that this tunnel is about twenty feet long; that a vein is disclosed therein having a more or less defined wall on the east side; that this vein has not been developed laterally; that it dips to the east; that the nearest surface opening on the vein is'the Weidell upraise, 387 feet north; that the next point where the Ripple vein comes to the surface is the'Linquist upraise, 210 feet north of the Weidell upraise and that the next and last point where the vein reaches the surface is the Pierce and Westgard upraise, 165 feet north of the Linquist raise; that at the
That plaintiffs might, by work done upon their vein from its apex down to the disputed territory, furnish substantial evidence that their claims, as to the identity of their vein with the vein found in defendants ’ ground, are well founded need not be questioned here; it suffices that they have failed to present such evidence in this suit; and as it appears they have presented all the evidence at this time available to them, it follows that the judgment should be reversed and the cause remanded with directions to dismiss the complaint. It is so ordered.
Reversed and remanded.
Rehearing denied June 28, 1917.