83 Cal. 203 | Cal. | 1890
Plaintiff brought this action to recover damages for the alleged excavating, carrying away, and converting to their own use by defendants of large quantities of silver-bearing ore belonging to plaintiff. The verdict and judgment were for plaintiff; and defendants appeal from the judgment, and from an order denying their motion for a new trial.
There is one main question in the case, which we will examine first, as the others are of comparatively little importance.
Plaintiff is the owner.of a ledge or lode location and mining claim known as the Oriental. A portion of
The defendants averred as a defense, and offered evidence to sustain it, that there is a vein or lode of silver-bearing ore the top or apex of which is within the surface lines of the Silver King extended downward vertically that said vein, in its downward course, departs so far from a perpendicular as to extend outside the vertical southerly side line of the surface location of the Silver King, and to enter under the surface lines of the Oriental; and that whatever ore defendants may have taken within the side line of the Oriental was taken in the exercise of their right to follow the dip of the said vein, the apex of which was within the surface lines of said Silver King. The court below ruled out this defense, and kept it away from the jury, for the reason—and for the sole reason—that in the original location of the Silver King the end lines were not parallel. There is no pretense, as we understand it, that the location was not sufficient, or that it did not comply with mining customs and the laws of Congress in every
For another purpose, evidence was admitted which showed that at the time — in March, 1882 ■—■ when the west end line was made parallel with the east end line, as aforesaid, the owners of the Silver King- had made application for an official survey of their mine preparatory to applying for a United States patent; that J. 0. Dunlap, a mining engineer and surveyor, at the request of the United States surveyor-general, had made such survey, and that, finding the end lines not parallel, he ran a new west end line, commencing at the northwest corner of the original Warden location, and drawing it in easterly to the original southerly side line so as to make the two end lines parallel, as before stated; that in doing so he kept along and within the original lines so as to make the surface ground less and not more than the original; and that he placed permanent monuments on the new southwest corner and on the end line. There
The following diagram shows the shape of the Silver King surface ground: —
The four outside lines are those originally made by Warden; the dotted line shows the alteration of the west end line made by Dunlap, who followed all the other lines made by Warden. The points at which defend
The theory of respondent, upon which the case was tried in the court below, is based on the last line of section 2320 of the Revised Statutes of the United States, which is as follows: “The end lines of each claim shall be parallel with each other”; and his position is, that as the end lines of the Silver King, as originally located, were not parallel, therefore its owners could not follow a vein beyond the vertical side lines of the location. We do not understand respondent to contend that such a location as that of the Silver King is void for all purposes. Indeed, we understand his counsel to admit that it is good for all purposes, except only for the purpose of going underground outside of the surface lines. But — if the question were important here — it would be difficult to logically maintain that distinction. Section 2320, which provides for the parallel end lines, does not give the right to follow a vein beyond the surface lines. It does not provide that if the end lines are parallel, the vein may be followed; and if they are not, then the vein may not be followed. It deals merely with locations generally,—with locations for all purposes. But section 2322, which does give the right to so follow a vein (and which .is little more than a declaration of a previous mining custom), says nothing about parallel lines. If, therefore, the provision of 2320 about end lines is to receive the strict, literal, narrow, mandatory construction contended for by respondent, it is difficult to see why a location like that of the Silver King is not totally void for all • purposes, or for any purpose.
But we do not think such a construction of section 2320 is admissible in any view, or for any purpose. It would include absolute mathematical parallelism; for if the divergence of a few feet in a distance of six hundred feet would not vitiate a location, why should any reasonable divergence which does not materially change the
But section 2322, which gives the right to follow veins beyond surface lines, does contain some provisions about that right which are important. By that section a vein can be followed outside of the side lines only, and not outside of the end lines. And so a surface location might be made in such an irregular and many-sided shape as to destroy the right to go beyond the surface lines. That consequence, however, would not be because the end lines were not exactly parallel, but because it would be difficult, if not impossible, to tell which were side lines and which were end lines. In the Flagstaff Case, 98 U. S. 467, in Elgin M. Company v. Iron S. M. Company, 14 Fed. Rep. 39,7, and in other decisions, it has, been held that the provisions of the federal statutes relating to lode claims were passed with the understanding, founded upon the general practice of miners, that the surface locations of such claims "will be made lengthwise along the general direction of the lode or vein in the general form of a parallelogram, with the s, de lines along the.lode and the^end lines across it. Buj; suppose that a surface location should be made, for instance, in the shape of an octagon (and such was nearly the shape of the location in the case reported in 118 United States, hereinafter mentioned), in such a case there would be no end
Counsel for respondent, in support of their main contention, cite the case of Iron Silver Mining Co. v. Elgin Mining Co., 118 U. S. 196.) The language of the opinion of the court in that case must be considered with reference to the facts of the case, and the points which were before the court for decision. The question involved was the right of the defendants therein, who were the owners of a lode location called the Stone claim, to follow a vein, the apex of which was within the surface lines of said claim, into an adjoining claim owned by plaintiffs, called the Gilt Edge claim. When defendants offered evidence to prove their right to follow their vein into the Gilt Edge ground, the plaintiffs objected, because, “by reason of the surface, form, or shape of the Stone claim, its owners had no right” to follow, etc., and because “no part of the Gift Edge claim, or the mineral or lode within it, was within vertical planes drawn downward
Here is a surface location with nearly a dozen exterior lines, with no distinguishable side line or end lines, made in extreme violation of the usages and principles of location recognized by the statutes, and which, if it gave any right to follow a vein at all, would give the right to follow veins in nearly a dozen different direc
Of course, where end lines diverge to any considerable extent from a perfect parallel, they might, when extended in their own direction, include, on one side at least, greater length of ledge outside the side lines than within them; and in such case, if the owner undertook to mine outside ore on or near the diverging end line, some difficulty might arise; and it was, no doubt, the purpose of section 2320 to prevent a party from claiming more outside his lines than within them. But no such question" arises in this case. Moreover, we think that defendants should have been allowed to show, as a part of their de
For the foregoing reasons, the judgment must be reversed; and in looking again over the transcript we see no other points made by appellants which seem to need special mention, or that will create any difficulty if there shall be another trial of the case.
The judgment and order are reversed, and cause remanded for a new trial.
Thornton, J., and Sharpstein, J., concurred.
Hearing in Bank denied.