114 F. 417 | 9th Cir. | 1902
This was an action of ejectment, in which the defendant in error was plaintiff in the court below, brought for the recovery of certain underground portions of a vein or lode alleged to have its apex within the surface lines of a mining claim called the “King,” which vein or lode, it is alleged in the complaint, in its course crosses the end lines of that claim. The incidental question of damages, for which the plaintiff also sued, has been, by stipulation of the respective parties, ■ withdrawn from present consideration. The case was tried without a jury, and resulted in certain findings of fact made by the court, and a judgment thereon in favor of the plaintiff to the action. The record contains a bill of exceptions embracing, among other things, various assignments of error, the 2d, 3d, 4th, and 5th of which are to the effect that the trial court erred in making certain of its findings of fact, which findings of fact so complained of these assignments of error respectively set out at large. The 6th, 7th, 8th, 9th, 10th, nth, T2th, 13th, 14th," 13th, 16th, 17th, 18th, 19th, and 20th assignments of error are to the effect that the court below erred in refusing to make certain findings of fact requested by the defendant to the action. It is very clear that these assignments are unavailing. Where a ca.se is tried by the court without a jury, its findings upon questions of fact are conclusive in the appellate court. Only rulings upon matters of law, \i hen properly presented in a bill of exceptions,
The remaining assignments of error embodied in the record relate to the question of the sufficiency of the findings of fact made by the court below to sustain the judgment given by it, which is the real, and, indeed, the only, question in the case. Annexed to the opinion of the court below, as illustrative of its views, is the following diagram:
It appears from the findings that the defendant to the action (the plaintiff in error here) is the owner of the Viola mining claim, located February 20, 1886, and patented April 13, 1895; the San Carlos, located April 24, 1886, and patented April 22, 1895; the Skookum, located April 5, 1886, and patented August 10, 1891; the Likely, located April 24, 1898; and the Cuba, located May 7, 1898, — neither of which last two have been patented. The King, according to the findings, was located June 22, 1898, and is owned by the defendant in error (plaintiff in the court below). Tire ore bodies in controversy, and which were awarded to the defendant in error by the judgment of the court below, lie beneath the surface of the Likely, Skookum, and Cuba claims. As these three claims are also, according to the findings, the property of the plaintiff in error, prima facie the ore bodies in question belong to it. Cheeseman v. Shreeve (C. C.) 37 Fed. 36;
The findings and diagram annexed to the opinion of the court below show that the vein or lode in question is a very wide one, and crosses both end lines of each of the plaintiff in error’s patented claims,, Viola and San Carlos, the common side line of these two claims being entirely on the vein or lode. The Viola, being the older of the two locations, would, under the doctrine of St. Louis Min. & Mill. Co. of Montana v. Montana Min. Co., 44 C. C. A. 120, 104 Fed. 664, and like decisions there cited, be entitled, in the pursuit of its extralateral
The judgment is reversed, and cause remanded to the court below, with directions to enter judgment for the defendant on the findings.