109 F. 538 | 9th Cir. | 1901
This is an action of ejectment, in which the plaintiff in error was plaintiff in the court below. It involves an underground segment of a mineral-bearing ledge claimed by the plaintiff in the action to be a portion of the Stemwinder mining-claim, which claim confessedly is, and was at the time of the alleged trespass upon it by the defendants, owned by the plaintiff. The case comes here on the judgment roU. Annexed to the findings of the court, and made a part of them, is a diagram showing the Stemwinder, Emma, and Last Chance mining claims, with the
The defendant Last Chance Mining Company is shown by the findings to be the owner of the Emma and Last Chance claims. Both of the latter were patented by the United States more than five years prior to the commencement of this action. The Stem-winder has not been patented. Each of the claims was located in the year 1885. When the claimant of the Emma applied to the government for a patent therefor, the claimant of the Stemwinder filed in the land office an adverse claim to that portion of the ground in conflict between the two claims, and thereafter brought an action in the district court of the First judicial district of the then territory of Idaho to establish the alleged priority in location of the Stemwinder over the Emma, but which action resulted in a judgment establishing the priority of the Emma. In respect to the Stem-winder and Last Chance claims the court below found—
‘•That the Last Chance lode mining claim, as shown on said diagram A above [the diagram already set out], was located by its original claimants subsequent to the location of the Stemwinder, and although the worded notices of each dated on the same day of September, 1885, the Stemwinder discovery and location was made prior to the said Last Chance, and its rights attached first to the ground now in dispute between the parties; and I find that upon an application for patent to the Last Chance lode mining claim, as described in said diagram, no adverse claim was made by the said Stemwinder owners to the ground in conflict as shown on said diagram, and that the said Last Chance Mining Company received their patent therefor as so described, and is entitled to all the rights conferred by such patent.”
The eighth, ninth, tenth, eleventh, and twelfth findings of fact are as follows:
“Eighth. That there is a large ledge or lode of mineral-bearing rock and earth in place which enters the southerly end line of the Stemwinder lode claim, approximately having the course and width shown on the diagram A, and passing on its course through the said Stemwinder, the said Emma, and the said Last Chance lode claims, and having a dip southwesterly of from 35 to 40 degrees from the perpendicular; and, on its descent into the earth, developments show that it passes far beyond the surface of each of the said claims, and said vein or lode has its apex in each of said claims*540 to the extent indicated on said diagram. Ninth. That the lines which cross said lode on its course through the Emma claim are not parallel, and so converge in their prolongation to the westerly that planes drawn downward along the course of said lines intersect each other at a point marked ‘X’ on said diagram, and the rights of the owners of the said Emma lode claim to the lode cease at that point. Tenth. That the lines, a, t>, c, d, on said diagram, correctly show the lines on the surface, projected from the southeasterly and northeasterly corners of the Stemwinder lode claim, and indicate its. right to follow the lode on its descent westerly, except as modified by the rights which defendants are adjudged to have by virtue of these findings. Eleventh. That the defendants have entered upon and withhold from the plaintiff all that portion of said lode which lies between a plane drawn downwards along the line marked ‘a, b,’ and the xjlane of the south end line of said Last Chance claim drawn perpendicularly downwards along and projected to the point Z on said diagram, and assert right and title to same. Twelfth. That the allegation in the answer of the defendant Last Chance Mining Company (subdivision 8), as set forth in answer to the first cause of action in plaintiffs complaint, and also in its answer to the second cause of action therein, that the plaintiffs action is barred by virtue of section 4036 of the statute of limitations, is not sustained by the evidence.”
The conclusions of law reached by the court below are as follows:
“The plaintiff’s action is not barred by law. That the plaintiff is entitled to recover from the defendant that portion of the lode or vein sued for which lies in the triangular space bounded by perpendicular planes passing through lines described as follows: Commencing at a point where the south line of the Emma, prolonged westerly, intersects the south line of the Last Chance,- and indicated on said plat A by the letter X’; thence westerly along the prolongation of said Emma line-feet, to the point where the same is intersected by the original south line of the Stemwinder prolonged westerly, and indicated upon said plat A by the letter ‘Y’; thence easterly along said prolonged line of the Stemwinder- feet to the intersection of said south line of the Last Chance prolonged westerly, and indicated upon said plat by the letter ‘Z’; and thence to the place of beginning-feet along said south line of the Last Chance and its prolongation, — the right of said plaintiff to said segment of said lode or vein being hereby denied to all other portions of said vein or lode sued for in this action by plaintiff, and not contained in above description.”
Judgment was entered accordingly, from which the present appeal was taken. In its opinion the court announced its conclusion in these words:
“My conclusion is that the Stemwinder owns only so much of the apex of the ledge, measured along its center, as lies between its south line as originally located and the south line of the Emma, and that, in following the ledge on its downward course, it must be between the prolongation of the planes passing through these lines, which would end at their point of convergence indicated upon the plat by the letter ‘Y.’ There is another view which might be taken of the Stemwinder’s right; that is, that its south boundary line should be considered established, and that another line parallel to it should be established at the point where its ledge passes into the Emma, as was done “by the supreme court in the Del Monte Case, supra. Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 85. This rule would be followed here, but for the priority of the Emma.”
The priority of location of tlie Emma over the Stemwinder claim is not only found as a fact by the court below, but is conceded by the plaintiff in error; and the plaintiff further concedes, not only in its brief, but in its complaint, that the Emma has the right to follow the vein in its dip between vertical planes drawn through its converging end lines to the point of their intersection. The
“A parly who is in actual possession of a valid location may maintain that possession and exclude every one from trespassing thereon, and no one is at liberty to forcibly disturb his possession or enter upon the premises. At the same time the fact is also to he recognized that these locations are generally made upon lands open, uninclosed, and not subject to any full actual occupation, where the limits of possessory rights are vague and uncertain, and where the validity of apparent locations is unsettled and doubtful. ■ Under those circumstances, It is not strange — on the contrary, it is something to he expected, and, as we have seen, is a common experience —that conflicting locations are made, one overlapping another, and sometimes the overlap repeated by many different locations. And while in the adjustment of those conflicts the rights of the first locator to the surface within his location, as well as to veins beneath his surface, must be secured and confirmed, why,” asks the court, “should a subsequent location be held absolutely void for all purposes, and wholly ignored? Itecognizing it so far as it establishes the fact that the second locator has made a claim, and in making that claim has located parallel end lines, deprives the first locator of nothing. Certainly, if the rights of the prior locator are not infringed upon, who is prejudiced by awarding to the second locator all the benefits which the statute gives to the making of a claim? To say that the subsequent locator 'must, when it appears that his lines are to any extent upon territory covered by a prior valid location, go through the form of making a relocation, simply works delay, and may prevent him, as we have seen, from obtaining- an amount of surface to which he is entitled, unless he abandons tlxe underground and extralateral rights which are secured only by parallel end lines. In this connection,” continued the court, “it may be properly inquired, what is the significance of parallel end lines? Is it to secure to the locator in all cases a tract in the shape of a parallelogram? Is it that the surveys of mineral land shall be like the ordinary public surveys in rectangular form, capable of easy adjustment, and showing upon a plat that even measurement which is so marked a feature of the range, township, and section system? Clearly not. While the contemplation of congress may have been that every location should be in the form of a parallelogram, not exceeding 1,500 by 600 feet in size, yet the purpose, also, was to permit the location in such a way as to secure not exceeding 1,500 feet of the length of a discovered vein; and it was expected that tlie locator would so place it as, in his judgment, would make the location lengthwise cover the course of vein. There is no command that the side lines should he parallel, and the requisition that the end lines shall be parallel was for the purpose of bounding tbe underground extralateral rights which tlie owner of the location may exercise. He may pursue the vein downward outside the side lines of his location, but the limits of his*542 right are not to extend on the course of the vein beyond the end lines projected downward through the earth. His rights on the surface are bounded by the several lines of his location, and the end lines must be parallel, in' order that going downward he shall acquire no further length of the vein than the planes of those lines extended downward inclose. If the end lines are not parallel, then, following their planes downward, his rights will be either converging and diminishing or diverging and increasing the further he descends into the earth. In view of this purpose and effect of the parallel end lines, it matters not to the prior locator where the end lines of the junior location are laid. No matter where they may be, they do not disturb in the slightest his surface or underground rights.”
The court accordingly answered in the affirmative this question propounded to it by the circuit court of appeals for the Eighth circuit:
“May any of the lines of a junior lode location be laid within, upon, or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extralateral rights not in conflict with any rights of the senior location?”
In the case of the Hidee Gold-Mining Company, decided by the secretary of the interior January 30, 1901 (advance sheets), it was held that the location of a lode mining claim may even be laid within, upon, or across the surface of patented lode mining claims for the purpose of claiming the free and unappropriated ground within such lines and the veins apexing in such ground, and of defining and securing extralateral underground rights upon all such veins, where such lines are established openly and peaceably, and do not embrace any larger area of surface, claimed and unclaimed, than-the law permits.
As, therefore, upon the facts appearing, there was no valid objection to the Stemwinder location, the next question is, what rights did the owner of that location thereby secure? Confessedly, he acquired nothing as against the Emma, either on the surface or underground. But how is it as against the government and every subsequent locator? In the absence of any objection on the part of the owner of the Elnma, the locator of the Stemwinder had, as we have seen, the legal right to extend his lines upon and across that claim. The ground to the north and south of the Emma was, ‘according to the findings, open and unappropriated public land, with a mineral-bearing ledge passing in a northwesterly and southeasterly direction through the Emma and into the adjoining unappropriated public land to the north and south of that claim. Across that ledge and on unappropriated public land the locator of the Stem-winder laid his southerly end line, and along the course of the ledge and on unappropriated public land he laid his westerly side line. Across the ledge, partly on unappropriated public land and partly on the prior Emma location, he laid his northerly end line, parallel with his southerly end line, and along the course of the ledge, partly on the Emma and partly on unappropriated public land, he laid his easterly side line, almost, if not quite, parallel with his westerly side line. As, in the absence of any objection on the part of the owner of the Emma, the locator of the Stemwinder had the legal right to cross the prior location, his lines, as against the government and all subsequent locators, would therefore seem to have been perfectly laid.
What has been said is based upon the findings of the court below (which, as the case is presented, must govern us) in respect to the location of the Stemwinder, and the priority in fact of that location over that of the Last Chance claim. The conclusion above indicated we think necessarily follows from those facts, unless it be that the extralateral rights secured by the Stemwinder by virtue of its location were lost or impaired by reason of its failure to contest the application of the Last Chance for a patent to its claim, and the issuance of that instrument. That question remains to be considered. The findings are to the effect that an application for a patent to the Last Chance claim, as described in the diagram above inserted, was made, and that a patent was issued therefor. The Last Chance, as so applied for and patented, included, as will he seen from the diagram, a triangular piece of the ground embraced by the Stemwinder location, and included the westerly portion of the Stemwinders northerly end line. Notwithstanding that fact, the findings declare that the Stemwinder failed to contest the application of the Last
The claim that the applicant is by the foregoing provisions of the
From these views it results that the plaintiff in error was awarded more by the court below than it was entitled to, and therefore has no just cause to complain. But for its failure to contest the application of the Last Chance Company for the patent to its claim and the issuance of that instrument, we should feel obliged, for the reasons first hereinbefore stated, to award the Stemwinder the right to follow the dip of the vein in question outside of its westerly side line and between vertical planes drawn through its end lines, a, h, c, d, extended, in their own direction, as against the government and all subsequent locators, saving only the surface and underground rights conceded to the Emma claim. As it is, we must affirm the judgment. Judgment affirmed.