205 F. 480 | 9th Cir. | 1913
The appellants were the complainants in the court below in a suit against the appellee brought pursuant to section 2326 of the Revised Statutes (U. S. Comp. St. 1901, p. 1430) to determine the right of the parties as respective mining claimants to certain land covered by the claims of both. The appellee’s claims are placer claims, and are prior in time to those of the appellants. On the lands occupied by the appellee’s placer claims, the appellants located lode mining claims, and the principal question on the appeal is: May the mineral deposit which is in dispute between the parties be secured by placer mining locations, or must it be secured by lode mining locations, .and preliminary to that question is the inquiry whether the trial court had jurisdiction to determine it. The mineral deposit in dispute is a zone of calcium phosphate. It lies between clearly defined walls. The overhanging wall is a cherty siliceous limestone of a bluish color, and the foot wall is a similar limestone of a
“It is in full accord with iiiis purpose that the law should declare, as it does, that when this contest is inaugurated the Land Officers shall proceed no further until the court has decided.”
In Iron Silver Min. Co. v. Campbell, 135 U. S. 286, 10 Sup. Ct. 765, 34 L. Ed. 155, the court said: •
“And the purpose of the statute seems to be, that where there are two claimants to the same mine, neither of whom has yet acquired the title from the government, they shall bring their respective claims to the same property in the manner proscribed in the statute before some judicial tribunal located In the neighborhood where the property is, and that the result, of this judicial investigation shall govern the action of the officers of the Land Department in determining which of these claimants shall have the patent, the final evidence of title, from the Government.”
In Mining Co. v. Tunnel Co., 196 U. S. 337-357, 25 Sup. Ct. 266, 275 (49 L. Ed. 501), the court, referring to sections 2325 and 2326 (U. S. Comp. St. 1901, pp. 1429, 1430), said:
"Heading these two sections together, it is apparent that they provide for a judicial "determination of a controversy between two parties contesting for the possession of ‘land claimed and located for valuable deposits’; in other words, the decision of a conflict between two mining claims, a decision which will enable (he Land Department without further investí gallon to issue a patent for the land.”
In the Circuit Court of Appeals for the Eighth Circuit in Webb v. American Asphaltum Mining Co., 157 Fed. 203, 84 C. C. A. 651, and in San Francisco Chemical Co. v. Duffield (C. C. A.) 201 Fed. 830. it was held that the question whether the ground covered by adverse claimants was subject to location as placer or lode claims was determinable by the court in such proceedings. The decision in Clipper Mining Co. v. Eli Mining Co., 194 U. S. 221, 24 Sup. Ct. 632, 48 L. Ed. 944, which is cited by the appellee, does not involve the question which is here before us. In that case there were placer locations of 102 acres, and subsequently four lode locations were made within that area, which occupied, with the surface ground claimed, about 35 acres. In the adverse proceeding the question was not whether any of the ground was placer ground and subject to a location as such, but the contention of the lode claimants was that the officers of the Land Department had on other grounds rejected the placer locations. The decision went no farther than to hold that the owner of a valid mining location, whether lode or placer, has the right to the exclusive possession and enjoyment of all of the surface, and that one going upon a valid placer location to prospect for unknown lodes against the will of the placer owner is a trespasser, and cannot initiate any right thereto.
“By the term ‘placer claim,’ as here used, is meant ground within defined boundaries which contains mineral in its earth, sand, or gravel, ground that includes valuable deposits not in place; that is, not fixed in rock, but which are in a loose state, and may in most cases be collected by washing or amalgamation without milling. By ‘veins or lodes,’ as here used, are meant lines or aggregations of metal imbedded in quartz or other rock in place.”
In Northern Pacific Ry. Co. v. Soderberg, 188 U. S. 532, 23 Sup. Ct. 367, 47 L. Ed. 575, Mr. Justice Brown said:
“Placers are merely superficial deposits occupying the beds of ancient rivers or valleys, washed down from some vein or lode.”
A mineral lode has been defined to be a mineral bed of rock with definite boundaries in a general mass of the mountain (Stevens v. Williams, 1 McCrary, 480, Fed. Cas. No. 13,413), also any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock (Eureka Consol. Min. Co. v. Richmond, 4 Sawy. 302, Fed. Cas. No. 4,548, affirmed in 103 U. S. 839, 26 L. Ed. 557). And a vein or lode is in place within the meaning of the statute when it is inclosed in a general mass of what is known as country rock, that general bed of the country which remains in its original state unaffected by the action of the elements. In Stevens v. Williams, Mr. Justice Miller said:
“And there I want to say that by rock in place I do not mean merely hard rock, merely quartz rock, but any combination of rock, broken up, mixed up with minerals and other things, is rock, within the meaning of the statute.”
And in Mining Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. 481, 29 L. Ed. 712, the court said:
“Excluding the waste, slide, or débris on the surface of the mountain, all things in the mass of the mountain are in place.”
In the Eureka Case, 4 Sawy. 302, Fed. Cas. No. 4,548, Mr. Justice Field said:
“We are of opinion, therefore, that the term as used in the acts of Congress is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. It includes, to use the language cited by counsel, all deposits of mineral matter found through a mineralized zone or belt, coming from the same source, impressed with the same forms, and appearing to have been created by the same processes.”
In Jones v. Prospect Mt. Min. Co., 21 Nev. 339, 31 Pac. 642, the lode under consideration consisted of broken limestone,- boulders, low grade ore, ground gravel and sand, which appeared to have been subjected to the action of water, and it was found to a depth of several hundred feet with the rock on either side “fixed, solid and immovable.” The court held that the attempt to draw a distinction based upon the mode or manner or time of its deposit would be utterly impracticable and useless, and said:
“Mineral so found, no matter where it was originally found or deposited, is in place within the meaning of the law.”
“The location being void, the ground remained as if none liad been made, and was unappropriated mineral land, subject to location by others.”
“He had made no such location as prevented the lauds from being in law vacant. Others had the right to enter for the purpose of taking them up, if it could be done peaceably and without force.”
See, also, Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Nevada Sierra Oil Co. v. Home Oil Co. (C. C.) 98 Fed. 673; Thallman v. Thomas, 111 Fed. 277, 49 C. C. A. 317; San Francisco Chemical Co. v. Duffield (C. C. A.) 201 Fed. 830.
The decree is reversed, and the cause is remanded to the District Court, with instructions to enter a decree for the appellants.