Cheesman v. Shreve

37 F. 36 | U.S. Circuit Court for the District of Colorado | 1888

Brewer, J.

These defendants are entering beneath the surface, within the side lines of ground patented to complainants, and seeking to mine and take ore therefrom. Prima facie they are trespassers. They justify this entrance under authority of the laws of the United States, and especially section 2322 of the Revised Statutes, which give to the owner of a vein, lode, or ledge, the top or apex of which lies within the surface lines of his own location, the right to follow that vein downward, outside of the side litres of his location, and into territory whose surface belongs to another. Involved in their claim is the question whether there is such a vein as is provided for in that section; a question as to the right of entrance, as affected by priority of location and the dip of the vein. Those questions are presented, and, whatever may be the true answers thereto, it is obvious, from past judicial expressions, that they cannot he considered as mere sham, or pretended, hut as real, substantial questions. Hence, as questions arising under the laws of the United states, they present a case cognizable by the court. Mining Co. v. Larimer Co., 8 Fed. Rep. 724; Starin v. New York, 115 U. S. 248, 6 Sup. Ct. Rep. 28. As the defendants are entering within the side lines of complainant’s property, prima facie they are trespassers; and where the affidavits, upon an application fora preliminary injunction, are conflicting, the rule is to preserve the possession as against such prima facie trespassers by a preliminary injunction, leaving the question of title to the property to be established by a suit at law. Temporary injunction will issue upon the giving of a bond in the sum of §25,000, conditioned according to law.